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Title. .Se9.LkWLi..^--D..(lv 

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Republic 



OR 



Empire r 



P 



By 

PERRY BELMONT. 



Prepared at the Request of the 
New York Democratic State Ojmmitte*. 



Republic 



OR 



Empire: 



? 



PERRY BELMONT. 



Prepared at the Request of the 
New York Democratic State Committee. 



lM^-0 



■ hs 



PREFACE. 



The preface to the contents of this pamphlet, much of which had been 
published before " imperialism" had been as cleariy defined as it now, and by 
the debates in the last Congress in which so many competent lawyers partici- 
pated, has been prepared at the request of the Democratic State Committee of 
New York. 

The Democratic National Conventisiii declared at Kansas City that " the 
burning issue of imperialism, growing out of 'the Spanish war, involves the 
very existence of the Republic, and the destruction of our free institutions. 
We regard it as the paramount issue of the campaign.' " 

Thereafter the issue could not be evaded. "The Republican Campaign 
Text Book," recently issued by the Republican National Committee, has 
emphasized it as supreme, and attempted its definition. 



The republican definition of " Imperialism " is : 

" Tbcre 19 and can be no each thing ae imperialism under a republican form of government. 

" There is no such thing as imperialism as distinguished from expansion. 

" Imperialism issovereign rule without law. It is the government of apeoplebya personal 
will. 

" Where law rules imperialism does not and cannot exist. 

" The President exercises no authority in the Philippines except by virtue of law. The 
power under which he establishes military government or creates temporary civil authority 
pending the action of Congress is conferred by law. Imperialism is autocratic rale without 
law and against the public will." 

Identification of "Imperialism" with enlargement of national area had 
nothing in our history on which to rest before the last war. There is beneath 
the, rule of law imperialism in Great Britain, Germany and Russia, but not in 
the United Stales. In the main, the Republican definition of the " Imperial- 
ism" which the Kansas City Convention described and labelled, is correct. 
It is government lawlessness. It has nothing to do with crowns, courts, orders 
of nobility and the various other well known features of a monarchical 
government, unless our Constitution forbids them, as orders of nobility are 
forbidden by its First Article. 



Republic or Empibe? 



III. 

The treatment of the native inhabitants of our new islands, to which Presi- 
dent McKinley required Spain to assent at Paris, is quite unlike the treatment 
of the native inhabitants stipulated in the treaties of cession concluded with 
France, Spain, Mexico and Russia. 

International law has many rules not quite consistent with ordinary reason, 
and one of them is that a treaty dictated under the stress of military menace 
shall be deemed a voluntary act. unless the menaced sovereign signing it is a 
captive prisoner, but were it not for the rule a war might never end till one 
party has been annihilated. A similar rule is that when war breaks out indi- 
viduals are inseparable from the State, and, therefore, when Congre!;s declared 
war against Spain, even every Alaskan became instantly an enemy of every 
Filipino, and personally bound by the result of the war; but the rule has been 
found useful, it is said, in preventing, or shoitening wars. A similar rule is 
that a belligerent has a right to seize and confiscate property of an enemy 
found on land, but fortunately the Supreme Court (8 Cranch, 133), derogating 
from the unlimited "war power" of the President, decided that Congress 
must have authorized it. Another rule of hardship and injustice is that, if 
the conquered in war makes a treaty of cession, the inhabitants of the ceded 
country are, especially under a representative government, so bound up 
with their rulers that such inhabitants are transferred without their consent. 
And so Republican leaders assert that, imder the second clause of the third 
section of the fourth article of the Constitution, Congress can cede New- 
Mexico back to Mexico and transfer therewith, without consulting them, all 
the inhabitants of the latter territory, as Spain by the cession of the Philip- 
pines transferred the natives. That is a harsh rule, and one not to be counte- 
nanced by the United States, unless the exigency admits of no other course. 

The third article of the French treaty of 1803 stipulated : 

" The inhabitante of the ceded territory shall be incorporated in the Union of the United 
States, and admitted as soon as possible, according to the principles of the Federal Constitu- 
tion, to the enjoyment of all tho rights, advantages and immunities of citizens of the tJnited 
States ; and in the meantime they shall be maintained and protected in the free enjoyment of 
their liberty, property and the religion which they profess." 

On the 2d of February, 1819, Spain ceded Florida to the United States. 
and the sixth article of the treaty of cession contained the following provision : 

" The inhabitante of the territories which His Catholic Majesty cedes to the United States 
by this treaty shall be incorporated in the Union of the United States as soon as may be con- 
sistent with the principles of the Federal Constitution and admitted to (he enjoyment of the 
privileges, rights and immunities of the citizens of the United States." 

Chief Justice Marshall, speaking for the Court (1 Peters, 511) in relation to 
that article, defined the difference between civil rights and political rights 
when he said : 



Republic oe Empire ? 5 

"This treaty is the law of the land, and admits the inhabitants of Florida 
to the enjoyment of the privileges, rights and immunities of the citizens of the 
United States. It is unnecessary to inquire whether this is not their condition, 
independent of stipulation. They do not, however, participate in political 
power ; they do not share in the Government till Florida shall become a State. 
In the meantime Florida continues to be a Territory of the United Slates, 
governed by virtue of that clause of the Constitution which empowers 
Congress ' to make all needful rules and regulations respecting the territory or 
other property belonging to the United States.' " 

"Women and children have in New York civil rights, but not political rights, 
inasmuch as they do not vote or hold office. 

The nmth article of the Mexican treaty of 1848 declared : 
" The Mexicans * * * shall be incorporated into the Union of the United States, and 
be admitted at the proper time (to be judged of by the Congress of the United States) to all 
the rights of citizens of the United States, according to the principles of the Constitution ; 
and. In the meantime, shall be maintained and protected in the free enjoyment of their liberty 
and property, and secured in tliefree exercise of their religion without restriction.^' 

The third Article of the Russian treaty of 1867, says : 

" They, with the exception of the uncivilized native tribes, shall be admitted to the 
enjoyment of all the rights, advantages and immunities of citizens of the Cniled States, and 
shall be maintained and protected in the free enjoyment of their liberty, property and religion. 
The uncivilized tribes will be subject to such laws and regulations as the United States may, 
from time to time, adopt in regard to the original tribes of that country." 

The first three treaties add nothing to what the Constitution declares 
regarding new States, and do not bind Congress to admission into the Union, 
as can be seen in the case of New Mexico which is not yet a State at the end 
of fifty -two years. 

The words " privileges and immunities " are in the first clause of the sec- 
ond section of the fourth Article of the Constitution defining the rights a 
citizen of New York has in Rhode Island. What those treaties mention defi- 
nitely is '■ privileges, rights and immunities," which are equivalent to ' ' liberty, 
property and religion," all of which are, through the Supreme Court, secured 
by the Constitution. Resident or traveling aliens have them in all our States 
and Territories. 

Since republican leaders endeavor to mislead voters by asserting for a 
treaty a superiority over the Constitution and statutes enacted by Congress, it 
is necessary to quote at considerable length from two Supreme Court decisions. 

A treaty, then. Is a law of the land, as an act of Congress is, whenever its provisions pre- 
scribe a mle by which the rights of the private citizen or subject may be determined. And 
when such rights arc of a nature to be enforced in a court of justice, that court resorts to the 
treaty for a rule of decision for the case before it an it would to a statute. 

A treaty is made by the President and the Senate. Statutes are made by the President, the 
Senate, and the House of Representativea. The addition of the latter body to the other two 
in making a law certainly does not render it less entitled to respect in the matter of its repeal 
or modiflcaiinn than a treaty made by the other two. 

In short, we are of opinion thai, so far as a treaty made by the United SUtes with any 
foreign nation can become the subject of judicial cognizance In the courts of this country, It la 
subject to such acta as Congrees may pass for its eaforcem«nt, modillcation or repeal. 



6 Republic or Empire ? 

(Head Money Cases, 112 U. S., 598-599.) 

The validity of this act, as already mentioned, ia assailed as being in effect an expulsion 
from tbe conntry of Chinese laborers In violation of existing treaties between the United 
States and the Government of China, and of the rights vested in them under the laws o 
Congress. The objection that the act is in conflict with the treaties was earnestly pressed in 
the com-t below, and the answer to it constitutes the principal part of its opinion. ^36 Fed. 
Rep., 4.31.) Here the objection made is that the Act of 1888 impairs a right vested under the 
treaty of 1880, as a law of the United States, and the statutes of 1882 and of 1884 passed in 



It must be conceded that the Act of 18S8 is in contravention of express stipulations of the 
treaty of 1868 and of the supplementary treaty of 1880, but it is not on that account invalid or 
to be restricted in its enforcement. The treaties were of no greater legal obligation than the 
act of Congress. By the Constitution laws made in pursuance thereof and treaties made under 
the authority of the United States are both declared to be the supreme law of the land, and no 
paramount authority is given to one over the other. A treaty, it is true, is in the nature of a 
contract between nations, and is often merely promissory in its character, requiring legislation 
to carry its stipulations into effect. Such legislation will be open to future repeal or amend- 
ment. It the treaty operates by its own force, and relates to a subject within the power of 
Congress, it can be deemed in that particular only the equivalent of a legislative act, to be 
repealed or modified at the pleasure of Congress. In either case the last expression of the 
sovereign will must control. 

(Chae Chan Ping vs. United States, 130 U. S., 581-611.) 

IV. 

The next treaty of cession after the Russian is the recent Spanish treaty. 
Its American negotiators endeavored to change previous stipulations regarding 
the natives. Why did President McKinley try to malie a radical and serious 
departure 1 

All that the treaty of Paris stipulated regarding the civil and political rights 
of the ceded peoples, beyond protecting religion, which is adequately done by 
the Constitution, is in this closing sentence of the ninth article : 

' ' The civil rights and political status of the native inhabitants of the terri- 
tories hereby ceded to the United States shall be determined by the Congress." 

The treaty did less for the Spanish subjects, natives of the islands ceded, 
than for those born in Spain and resident in the islands, because they do have 
a protection of civil rights by public law and other treaties, which the Republican 
" Text Book " affirms the transferred natives of Porto Rico and the Philippines 
have not. They are, in the Paris treaty, assimilated with "the uncivilized 
tribes " of Alaskans in the Russian treaty. 

No argument based on the condilion of members of an Indian tribe can 
aid in determining the condition of other persons, and for the reason that the 
European discoverers of our continent, Great Britain, the Colonies, the 
Revolutionary Congress, the Confederacy, and, finally, the Constitution, treated 
the tribal Indians as foreign nations peculiarly situated, and Congress was 
empowered to regulate commerce with them as "with foreign nations and 
among the several States." The Russian treaty stipulated "that the United 
States must treat the uncivilized Alaskans not less well than our Indian 
tribes. " 

The republican leaders and the American negotiators at Paris must have 
been, two years ago, very scantily informed of Supreme Court decisions, if 



Kepublic or Empire? 7 

they supposed anything said, or omitted, in the treaty could enlarge, or 
diminish, the force of the Constitution. When the Court had before it (9 
Peters, 117) the effects of the -words "liberty, property and religion" in the 
French treaty, it said that the principle expressed by the phrase would have 
been sacred independent of the treaty. 

That such is not the view of the Republican party is proven on page 54 of 
its " Text Book " where it is said : 

" Senator Foraker. in an addreBS before the Union League Clnb, Philadelphia, and after- 
ward printed in the Congressional Record at his own request, said : ' When we acquired Lonsi- 
ana. New Mexico, Florida, etc., it was provided in the treaty in each case that its inhabitants 
should be incorporated into the Union of the United States and be admitted to all the rights, 
advantages and immunities of citizens of the United States. The act by which we annexed 
Hawaii declared in express terms that the Hawaiian Islands shall become and be a part of the 
United States, but no such provision was incorporated in the Treaty of Paris as to Porto Rico 
and the Philippine Islands ; and if there ?iad been it is safe to say that the treaty loould never 
have been ratilkd.' " 

He endeavored to suppress the fact that the inhabitants were not to be 
incorporated into the Union until Congress was pleased so to vote. Why should 
not the recent treaty have been ratified with such a stipulation as to admission 
into the Union, binding no branch of the government of the United States to 
any thing more than exercise of discretion ? 

The next two sentences of the " Text Book" are even more startling as 
confessions of republican purpose. These are they : 

* On the contrary, for the purpose of making it clear that no such consequence was 
intended, it was provided in the treaty that the ' civil rights and political status of the-native 
inhabitants of the territory hereby ceded to the United States shall be determined by Congress." 
This provision was insisted upon by our Commissioners and was necei^sary to the ratification 
of the treaty, becanse we then had too little knowledge of the people of the Philippines and not 
enough of those of Porto Rico to know whether it would be wise or desirable to incorporate 
them into our body politic and to extend to them the privileges and immunities of American 
citizenship and undertake to govern them under the Constitution and subject to its restraints 
and requirements." 

In other words, the Republican leadens were so ignorant of our acquired 
peoples as to be unable to decide whether or not to give to them the civil 
rights that aliens have. 

Thct, however, is not the most startling part of the Republican confession, 
President lIcKinley and the American negotiators intended long before the 
Aguinalilo outbreak to deny the natives of Porto Rico and the Philippines 
the "privileges and immunilies" secured them by the Constitution, and meant 
to govern them without the protection of the fundamental law of the laud. 

Such lawlessness fully meets the republican definition of "Imperialism." 
When we recall what the American Commissioners at Paris promised the 
Spanish Commissioners Congress would do for the ceded natives, the con- 
fession betrays something worse than lawlessness. 

In an article in the December Xortfi American Review, herewith reprinted, 
there is an account of what took place in the tribimal at Paris, and the pledge 
of the American Commissioners, regarding the civil rights of the ceded natives. 



8 Republic or EMriEE? 

The failure by Congress to redeem that pledge presents something much 
more serious for the lionor of our country than a mere question of law. 

It has been shown how the republican " Text Book" and the Senate Chairman 
of the "Pacific Islands and Porto Rico " Committee insist that the republican 
leaders required at Paris that Spain consent to a change in our customary 
treaties of cession so as to expel the native and American citizens dwelling in 
the Philippines (foreigners are protected by treaties and the law of nations) 
into an outer darkness iinillumined by the Constitution; how Senator Foraker 
contended that Republicans would not have ratified the Paris treaty if it had 
stipulated that the natives "shall be maintained and protected in the free 
enjoyment of their liberty and property " ; how the Supreme Court has in 
efifect declared that such enjoyment is guaranteed by the Constitution to all 
within the jurisdiction of the United States. The judicial precedents are 
ample and there is an executive precedent that should be conclusive. 

The latter came about as follows : 

The Mexican treaty, as concluded by Mr. Trist on behalf of President Polk, 
contained a rambling and prolix article which was expunged by the Senate 
and the present ninth article substituted. Other amendments were made 
which Mexico ratified, and then transmitted to Washington subsequent con- 
versations with our Commissioners as a sort of protocol. The Senate called 
for it, and President Polk explained the whole matter in an.elaborate message 
of reply. (See " Messages and Papers of the Presidents," Vol. IV., p. 69.) 
Therein he said : 

' ' If the ninth article of the treaty, whether in its original or amended form, 
had been entirely omitted in the treaty, all the rights and privileges which 
either of them confers would have been secured to the inhabitants of the ceded 
territories by the Constitution and laws of the United States." 

Thus Poik's administration, a half century ago, cleariy saw that over all 
the forms of government, whether martial law government or beUigerent 
right government (which is not an individual despotism of the nations), or 
territorial government, or Federal States government of the people of the 
States, the Constitution is supreme, and that under it Congress decides politicnl 
questions everywhere throughout the sovereignty of the United States. The 
Supreme Court defines the area of those political questions, and then protects 
all the people, treaty or no treaty, in their cicil rights, privileges and immimi- 
ties, their liberty, property and religion, against President and Congress alike 
if need be. 

The hidden reason (See Cong. Record for March 30, 1900, p. 3750) for the 
radical change from former treaties insisted upon by President McKinley and 
the Republican leaders, was defense of the protective policy, to promote which 
he was nominated by them in 1896. and not becau.se, as we now know, of his 
devotion to the gold standard or of any purpose to strengthen it. 

Destroy the protective policy, stop sequestering our home market to benefit 
a few home industries, and there should be no serious impediment to the 
worid-wide power of our trade. No one believes the present Chinese crisis 
arose because the United States purchased the Philippines, or was influenced 
■ thereby. Few political economists think our trade with China has been or. 



Eepi-blic or Empire? ' 9 

can be much promoted by the purchase, but very many are convinced that 
securing the archipelago, in the way we did, has complicated our obtaining 
more Chinese trade. Coaling stations, and a naval base, would have been well 
enough. Today, the Republican candidate will denounce, it may be, as 
" criminal aggression," the seizure, conquest, or purchase of Chinese territory, 
but re-elect him President, and any day he may turn up in the Senate with a 
treaty of cession, undertaking to pay therefor no one knows how many 
millions, and then government of the acquisition by himself and the War 
Department in defiance of the Constitution. Thus the millions outside the 
Constitution, might, in time, on Republican theories, exceed those within its 
protection. 

3Ir. Thayer, of Magnolia, Mass., hit the nail on the head, when in a letter 
printed in the New York Ecening Post of September 4, 1900, lie said "that 
Imperialism is but the final hideous outgrowth of the corruption which, under 
the guise of proleclion, has been fostered by the Republican party." 
On page 55 of the " Text Book " that party officially declares : 
" Absolute freedom of trade between the United States and the Philippines with their 
popuiation of nearly lO.OOJ.OOO of Asiatic cheap labor would have proved damaging to the labor 
interests of the United States, both to the farmers who expected to be able to establish the 
beet sugar industry, to the tobacco growers, to the coal miners who are already suilering from 
the competition of cheap labor from other parts of the world, and to other classes of our laboring 
population. For these reasons it was thought best, inasmuch as the necebsities of the situation 
required it, in the very first legislation regarding the islands coming to the United States by 
this treaty, to establUh a precederd asserting the light of Congress to place such tariff and 
other restrictions between territory of this character and the United States as it might deem 
best, thus leaving to it the determination of the precise relation which each of the territories 
thus gained might occupy, as time and circumstances should develop, especially as the treaty 
had specifically provided that *'the civil rights and political status of the native inhabitants of 
the territories hereby ceded to the United States shall be determined by Congress." It was for 
this specific purpose of protecting the labor of the United States, on the farm. In the mine, in 
the factory or elsewhere, that Repuolican leaders determined to insist upon a mere shadow of 
tariff duties between Porto Eico and the United States. 

There was a time when the protective policy was only aimed against 
foreign lands and their products, but under "imperialism" it is aimed against 
our own islands and their products. 

If another witness is needed to explain what the Republican party has 
done, and reasons therefor. Senator Foraker can be calleil upon. He is Chair- 
man of the Senate Committee on " Pacific Islands and Porto Rico." 

In Ihe Conffressional Record for March 30, 1900 (p. 3748) he is reported as 
saying : 

We do not believe that Porto Rico stands in the same relation to the United States that 
other territories that have been acquired have stood. I do not believe that Porlo Rico is a 
part of the United States. There is where the roads part about this whole matter. Porto 
Hico is, I think, simply a possession of the United States. 

Mr. Allen— I am trying to get at the reamn of the matter. I do not care anything about 
the iioliq/ of it. I want to know the reason why it should not be erected into a Territory. 

Mr. FoRAKnn— The reason la that It is not a part of the United States, as a Territory is a 
part of the United States, where we have given Territorial government. 

Mr. Allkk— Why should it not be a part of the United SUtes f 

Mr. FoRAKEB— Perhaps there is no reason why it should not be. We could make it a part 
of the United States, but we have not yet made It a part of the United States. 



Kepublic or Empire? 



Oar coramiseionere who represented ne in the framing of this treaty had in mind when 
this treaty was drawn that we were not only acquiring Porto Rico with Porto Ricane, ihe 
inhabitants of that country, but also the Philippines, with eight or ten million people, about 
whom we did not know very much ; we did not know whether or not ihey would make good 
citizens of the United States, and did not know whether it would be wise to incorporate that 
territory, when so acquired, into the Union as a part of the territory of the United States, even 
as a Territory, much less as a State, 

What a confession of ignorance in December, 1898! Hence •' imperialism " 
and rejection of the Constitution ! 

Let the Republican Chairman of the " Pacific Islands and Porto Rico " 
again give his testimony : 

In the Congressional Becord for March 8, 1900, page 2818, this colloquy is 
reported : 



Mr. TniMAS— But, Mr. President, the Senator's argument, if it amonnte to anything, has 
reduced itself to this : That he is not certain yet as to whether he wants the PhUippines or 
not. If the Supreme Court shall determine that the Philippine Islands under the treaty are a 
part of the United States and that the laws and Constitution of the United States will be 
enforced there, if they go there ex proprio vigore— to use the law phrase which has been dinged 
into our ears here for the last two years— if we have the Philippines as a part of this conntrj-, 
then he does not know whether he wants the Philippines or not. 

Mr. FoBAKEK— It will be a question always what we shall do as to the Philippines ; and 
I will frankly say to the Senator, if it shall be detertnined by the Supreme Court, when that 
question is properly presented, that we can not levy any tax on imports from this oonntry into 
the Philippines, or on imports from there here, we may Mm to adopt a very different polUy in 
respect to the Philippines from that which, I now anticipate wi'l be adopted. 

Mr. Tillman— Then what becomes of the contention about philanthropy and the flag and 
the glory and everything of that kind, and of the humanitarian aspects of the case ! [Laughter.] 

Mr. FoBAKEE— There is an easy answer to that, Mr. President. The Senator can not ridi- 
cnle that idea in this connection. What I referred to in that connection was this : We want it 
settled not alone that we may know on what kind of conditions we can trade with that people, 
but we want it settled in order that we may know whether or not we can say to the people of 
the United States that the labor and the industry of this country shaU be protected from what 
has been charged as the unjust competition of the Malay in the Philippines and the products of 
Malay cheap labor. 

All over the country in the last campaign. Mr. President -to be more specific with respect 
to that which was in my mind-wc were told by those who represented organized labor ; we 
were told by Democrats on the stump, all speaking, no doubt, according to their honest judg- 
ment, that by the annexation of the Philippines we had taken a people into the United States 
against whom and whose systems of labor there was no power in the Congress of the United 
States under the Constitution to defend and protect the labor and Ihe industry of this country." 

As it is as absolutely certain as anything can be in the future, unless the 
maxim stare deHnu is to be disregarded by the Court, tliat the Porto Rico 
tariff legislation of May, 1900, will be adjudged unconstitutional, what sort of 
a Philippine policy is to be expected if a Republican President and House of 
Representatives shall be the outcome of the ballot boxes next November ? 
V. 
There is another reason, disclosed in the " Text Book," -why McKMeyism is 
so bent on " imperialism," and on setting aside the Constitution when trying to 
govern our new islands. It takes the voters back to that mysterious alliance 
between MeKinleyUm and British Toryium growing out of Lord Salis- 
bury's withdrawal from the European Concert which protested against war 



Eepublic or Empire? 11 

between the United States and Spain, and suggests what is popularly known as 
■' the open door " in China. Chairman Foraker told the Senate on March 8, 
1900, that the McKinley Administration had, by its diplomacy, put Congress 
and the country under " a moral obligation " to keep the Philippines open to 
free trade for all the world, excepting the States of the United States. 

This is what he said : 

We want to trade with the far East. We have reached that point in the development of 
1 the maiinfacture of prodncte, in the aggregation of capital, and in the com- 
' skilled labor when we are turning out annually millions in value more than we can 
L home. So we must find a market somewhere in the world. ^ e can not find it in 
Europe, but it is in the far East. In recognition of that fact, an open door to the markets of 
China is of the highest importance, for in China and Japan and Oceania and Australasia they 
have some six or seven or eight hundred million people possibly, who are just now being in- 
troduced to our civilization and who are coming to want our products.* 

Now, we say to Germany, to France, aud to England, who have been making lodgments 
there and who are in command of the situation, '' You shall not ehut these doors against us," 
as it was recently proposed they would. England said it two or three years ago, and I remem- 
ber when she sailed her ships over to Chemulpo, and stood them off opposite Port Arthur, and 
issued that proclamation which made the Anglo-Saxon blood start all over the world, in »hich 
she said, " These ports of China shall be open to all or open to none." 

Following that we have without any snch declaration, without any threat, without any 
menaces, succeeded in obtaining for ourselves what Great Britain was unable to accomplish, 
allhou:;h she made that threat ; we have been accorded an open door, and it is of the utmost 
importance to ns to consider what may be asked in return, for I say the probabiUtiee are that 
we shall be asked to give an open door in the Philippines as soon as the insurrection there 
is suppressed and we institute a civil government. It is one of the inevitable coming ques- 
tions, in my judgment. Now, when we are asked— we will not be necessarily required to give 
it, and we may not give it at all ; bnt after we have so strenuously insisted upon it and received 
it, it strikes me it will be a little bit embarrassing to withhold it. 

On the day before that, Mr. DoUiver, in the House {Congregnonal Record, 
p. 2741), made it even more clear why " imperialism " must prevail, and that 
the expositions of our Constitution by the Supreme Court during the last 
three-quarters of a century be swept aside. This is what he asserted : 

" If the Constitution of the United States establishes free trade between Manila and San 
Francisco, as it undoubtedly does between Maryland and Virginia, then the circumstance that 
we have got intoa new competition, possibly injurious to some of our industries, is only the 
least trouble that is before us. A consideration vaster by far than that arises at once, for we 
are in that case disarmed in advance in the momentooa demand which this nation has made 
for equal rights in the commerce of Asia. 

" I violate no secret of this government when I say that to-day there is pending in the 
State Department the most elaborate commercial negotiation ever attempted in the history of 
our diplomacy, based upon a pledge made by our commitsioners al Parii, that whatever we do, 
in the Pacific Ocean we will maintain an open door for the commerce of the world. And I 
ask Republicans, I ask those Democrat* from Georgia, from South Carolina, from the great 
cotton belt of the South, whose people are Interested in the prospects that are wrapped up in 
the commerce of the East, with what countenance can we stand before the cabinets of Europ*, 
protesting against the occupation of the ports of China to the prejudice of American tradt, 
when we ourselves, from our headquarters on the border, being tied down by an obtoltte a>n- 
efnjc/ion of our own I'onstitution, have deliberately drawn a commercial dead line about tbe 
Phlliijpine Islands for the permanent exclusion of everybody else f " 

There it is, " based upon a pledge made by our Commissioners at Paris." 
" An oifK&ie construction of the Constitution." Free trade for Europe and 
Asia with the Philippines, but not for New York. 



12 Eepcblic or Empire? 

Alongside of the two intelligent and persistent interests to which I have 
alluded, that have been pushing the Republican party into an attitude of 
hostility to the Constitution, there was another co-operating force, less intelli- 
gent and persistent, but influential enough to be considered. It was repre- 
sented by those of our countrymen who sincerely admire England, her 
political, financial and social institutions, and especially her colonization efEorts. 
They yearned for colonies of brown men, or black men, it mattered little 
which, to civilize and elevate to self-government. A dozen pages of the 
Republican " Test Book " (133-143) disclose that the advocates of American 
colonization in Asia, Africa, and islands of the tropics, hare had an industri- 
ous and ingenious ally in the Statistical Bureau of the Treasury Department, 
telling us that we are buying, on an average, a million of dollars a 
day in value of ti-opical products ; that all we need can be produced 
in our new islands, and that we can send to them in exchange all the merchan- 
dise they want. It was an attractive picture when environed with the 
promise of free trade and the rule of uniform tariff taxation under the first 
clause of the eighth section of the first article of the Constitution, but the 
attraction vanished under the Republican Porto Rico tariff law of the first of 
last May. The protective system is a perpetual enemy of our world-wide 
power. 

The Chief of the Statistical Bureau, working under the direction of Secre- 
tary of the Treasury, should have told those to whom he addressed his official 
publications on the glories and blessings of the English colonial system, that 
it was based on "imperialism," and could not exist under our written Consti- 
tution, and our American system of liberties. To a great many of our 
countrymen who so sincerely admire the political institutions of England, that 
would have been news. Perhaps it is now news to the head of the Treasury 
Statistical Bureau who supposes that British " imperialism " is as lawless there 
as McKinley's " imperialism " is lawless here. 

The Treasury Statistical Bureau, and the editor of the Republican "Text 
Book," may ask to be told why and how the " imperialism " on which the 
British colonial system rests is lawful there, but unlawful here. 

The answer is among the commonplaces of the literature of the creation of 
our governments. State and Federal. Every commentary on the Constitu- 
tion, from Tucker of Virginia to Cooley of Michigan, dwells on it. Each 
repeats the utterances of the other. It is not easy to employ new ideas, or 
language, in giving the answer. 

In the first place England has not a written Constitution. Her Constitu- 
tion is a system of unwritten customary and traditional law, all subject to the 
unrestrained power of Parliament. There, Sovereignty is held by the Queen 
and the two Houses of Parliament, and not by the people. Every- 
where in Europe, Sovereignty, or the power to govern, comes down from 
above, and does not ascend from the people. In England, the people have 
only such rights as sovereigns have conceded them, but in the United States, 
Presidents, Governors, Legislatures and Courts have only such rights and 
powers as the people have conceded. Chief Justice Marshall summed it all 
up in a sentence I have quoted in this volume. England has no Supreme 



Republic or Empiuk .■' 13 

bench empowered to test all acts of Parliament by a Constitution, to decide 
finally all cases arising under treaties, and in effect to put its veto on every- 
thing it deems forbidden by the fundamental law. In England, sovereignty 
is indivisible, but not so in the United States where, while the Union was in for- 
mation, it was discovered, for thetirst time, that sovereignty can be partitioned, 
and therefore the people of the States, being the only sovereigns, gave a part of 
their sovereigntj' to the government at Albany, another part to the government 
at Washington and kept the remainder for themselves, as any one can see who 
will read the ninth and tenth Amendments to the Federal Constitution. There- 
fore, neither the President, nor Congress, has an atom of power in Territories 
or colonies not imparted by the people of the States through our written 
Constitution, but the Queen and Parliament have, on the contrary, all power. 
The Secretary of the Colonies, Mr. Chamberlain, can do in South Africa what- 
ever he pleases, and is authorized " in council " to do. and so can, in India, the 
Secretary for India. Whoever has endeavored to get it in the head of 
evfcn the most intelligent European how and why each and every dweller in 
New York, his person and property, are subject to a Federal Court and also ' 
to a State Court with concurrent jurisdiction, each having power to take his 
life, will appreciate the American idea of divided and reserved sovereignty. 
The government at Washington has not and cannot have the unre- 
strained power over the Philippines that the government at London has over 
India and the two prostrated republics in South Africa. In the United States 
" nil legislative powers " are vested in Congress, and ' ' the executive power " is 
vested in the President, but no one before the McKinley period ever supposed 
that the legislative power could disregard the Constitution in such a legislative 
act as determining the civil rights of inhabitants of one of our new islands, 
or enacting the Porto Rico law of May 1, 1900. England can have one system 
for India, another for the Fiji islands and a third for Canada, regardless of 
any hard and fast rule, but the United States must submit to a very hard and 
fast constitutional rule in dealing with colonies. McKinleyUm refuses to sub- 
mit, and that is " imperialism." 

The great name and fame of Daniel Webster are invoked by the imperial- 
ists, who give garbled extracts from his utterances on the question of slave 
labor, as expressing his opinion that the Constitution did not, and does not, 
control Congress when legislating for territories. The Republican " Text Book " 
quotes from Mr. Webster, and, in like manner, garbles his utterances. For 
example, it suppresses this in the 1849 debate : 

" Mr. Underwood-I soy that we are bound, in legislating for the Territories as well as for 
the Stites, scmpnlously to observe every principle and provision of the Constitution, for we 
have taken an oath to support it. Let me put a case by way of illustration. Ours ia a Protes- 
tant country, in the main, while New Mexico and California are Catholic countries. Suppose 
we provide by our legislation that nobody shall be appointed to office there who professes the 
Catholic religion. What do we do by an act of this sort ? 

" Mr. Webster— We vlolalf Ihe ConttituUon, which says that no religious test shall ever be 
required as a qualification to any office.'* 

On March 23, 1848, Mr. Webster tersely explained why the government at 
Washington cannot rule colonies as can European governments which have not 
a written Constitution and a Court to compel every executive or legislative 



ymen 
on tl 



14: Eepublic or Empire? 

official act to conform thereto, and he predicted precisely that to which Demo- 
crats believe McKinleyism and "imperialism" are driving our country, when 
he said : 

' ' An arbitrary government may have territorial governments in distant possessions, because 
an arbitrary government may rule its distant territories by different laws and different systems. 
Russia may govern the Ultraine and tbe Caucasus and Kamcbatka by different codes or ukases. 
We can do no sucli thing. They must be of us— part of us— or else estranged. I think I see, 
then, in progress what is to disfigure and deform the Constitution. * * * I think I see a 
course adopted that is likely to turn the Constitution under which we live into a deformed 
monster- into a curse rather than a blessing — into a great frame of unequal government, not 
founded on popular representation, but founded in the grossest inequalities ; and I think if it 
go on, for tliere is a great danger that it will go on, that this Government will be broken up." 

VI. 

The mere acquisition of the Philippines and Porto Kico for the United 
States was not of itself conclusive evidence of "imperialism." Enlargement 
of the national area may be perfectly praiseworthy and lawful, but govern- 
ment of the acquisition after cession may be vicious and lawless. Expansion 
on the lines of Jefferson, ilonroe, Polk and Pierce is democratic, but "impe- 
rialism " is not democratic. That vicious and lawle.ss government of the islands 
ceded by Spain constitutes the ' ' imperialism " of McKinley and his Republican 
Congress, and has brought them within the definition of the Republican " Text 
Book." 

The profitless radical departure by the President in the stipulations of the 
Spanish treaty regarding the future civil rights of the Spanish subjects trans- 
ferred with the islands so unlike those contained in similar treaties of ces.sion 
negotiated by the United States, creates a well-founded suspicion of a purpose 
at Washington to modify our customary law on such matters. What was 
done, and that which was not done, by the President and Congress after April 
11, 1899, furnish satisfactory proof that when the President and the republican 
leaders decided to demand of Spain the cession of the islands and their native 
inhabitants on payment of twenty millions, it had been agreed in Washington, 
between Congress and the Executive, that those inhabitants should, in imitation 
of British imperialism, be ruled in disregard of our Constitution and in deti- 
ance of the Supreme Court, in order, among other things, to preserve the 
McKinley protective system and carry out arrangements made with the gov- 
ernment at London in regard to China. 

It must also have been understood and agreed that since the new islands 
were to be ruled in disregard of the Constitution, therefore the people of all 
the other territories must be treated in like manner. 

Out of the overwhelming mass of evidence of a republican intention to 
set aside our customary jurisprudence in such matters, and substitute British 
"imperialism " in its place and stead, these poihts, among others, stand out 
conspicuously : 

(a) The refusal of the President to convene Congress immediately after he 
proclaimed peace with Spain on April 11, 1899, and refusjil, in his annual 
message of the next December, to really urge Congress to determine, as the 



Republic or Empire? 15 

treaty required, the civil rights and political status of the natives of the islands 
acquired. 

(A) The failure of Congress to aunounce its determination (even if the 
President did not urge it) discloses conspiracy between the two. 

(r) This declaration, made by the Secretary of War in his annual report for 
1899 : 

• I assume, for I do not think thct it can be snccessfnlly disputed, that as between the peo- 
ple of the ceded islands and the United States the former are subject to the complete 
sovereignty of the latter, controlled by no legal limitations except those which may be fonnd 
in the treaty of cession ; that the people of the islands have no right to have them treated as 
the Territories previously held by the United States have been treated, or to assert a legal 
right under the provisions of the Constitution, which was established for the people of the 
United States themselves, and to meet the conditions existing upon this continent, or to assert 
against the United States any legal right whatever not found in the treaty." 

((f) The speeches made in Congress by nearly every Republican lawyer, 
upholding, in substance, the opinions expressed by Senator Ross of Vermont, 
and approved by the Republican Text-Hook, as well as the following utterances 
by Mr. Grosvenor in the House on March 7, 1900 : 

" These territories, Puerto Rico and the Philippines, were acquired with the distinct con- 
dition /Vw^-rf in Md frra/y that everything relating to the people of these islands should be 
settled by Congress. The makers of the treaty declined to touch any conditions and left it all 
to the uncontrolled action of Congress. ' But,' say our enemies, ' do you say and claim that 
the Constitution of the United States has no effect upon the Territories ? ' That is what we 
say, yes." 

(e) The averments in the House by Mr. Dalzell, of Pennsylvania, that it 
would be " grotesque," and by Mr. Moody, of JIassacbusetts, that it would b3 
" impossible " to govern our new islands under the restraints of the Constitu- 
tion.— (Conjr. Mec, p. 2732.) 

(/) Senator Foraker having introduced into the Senate a bill relating to 
Porto Rico biused on the President's ' ' plain duty" theory, and a few days later 
having presented another on the opposing lines of " imperialism," Senator 
3acon, on March 31, 1900 (Confif. Iit:c., p. 3790), offered the first Foraker bill 
as a substitute for the second Foraker bill, and pledged to it the democratic 
support if republicans would accept the substitute. Senator Bacon said : 

"I want to say another thing; that I have offered the amendment in the utmost good faith; 
that I shall be more than delighted if it can be passed, and passed, not as my amendment or 
substitnte, but as the bill of the Senator from Ohio. In this original bill of the Senator from 
Ohio, which has been presented by me now as a substitute after it has been practically put aside 
by those who originally favored it, there fa a declaration that the inhabitants of Porto Rico 
are citizens of the United States. It imposes upon imports into Porto Rico from foreign lands 
the duties levied by the Dingley Tariff Liiw. It specifically declares that there shall 
be no tariff duties between Porto Rico and any part of the United States as to goods 
coming from Porto Rico or going to Porto Rico. It establishes a legislative assem- 
bly in the island and denominates it the Legislative Assembly of the Island of Porto 
Rico, United States of America. The provision of the bill requires that in the enactment of 
laws by that Territorial Legislatare the following language shall be used ; Be U enacteil by the 
Legulativf AMemhly of the Inland of Porto Rico, Unlled States of America. 

"It further prescribed that there shall be no legislation inconsistent with the Constitution of 
the United States, and it provides that the existing laws of the island shall continue in force, 
except 90 far as inconsistent with the Constitution of the United States. 



16 Kepublic OB Empire? 

" It provides that the offioere of the jadiciai courtB shall be officers of the United States— 
the jadgeE,the district attorneys and tbemarehals. 

" There is another point which I omitted to mention. It extends over the island, the 
internal revenue system of the United States. Finally, it gives to the people of Porto Eico 
a Delegate in Congress. 

" Now, I will not stop at this time to contrast that with the present measure which is now 
arged upon the Senate, but I desire to say that if the Senator from Ohio, and those who act 
with him, should see fit to bring to a vote in the Senate the bill as originally introduced by him, 
with such minor amendments as may be found necessary, while I am not authorized to speak 
for all on this side of the Chamber, I know there are a number who would vote for it, and I do 
not believe there would be a dissenting voice on this side. Chamber in support of that measure, 
for the reason that it accomplishes what we think ought to be accomplished." 

It i.s needless to say that the Republicans refused to vote for the substitute 
constructed on the lines of "plain duty." 

(g) On March 30, 1900, Senator Pettus offered this amendment to the Porto 
Rico bill, and every Republican Senator present voted against it : 

Sec. 13. That the Constitution of the United States and also the Laws of the United States 
not locally inapplicable, shall have the same force and effect in Porto Rico as in other Terri- 
tories of the United States. 

(A) On March 30, 1900, a resolution offered by Senator Allen, 

" That the Constitution was, by force of the treaty concluded between the United States 
of America and the Kingdom of Spain at the City of Paris, France, April 11, 1899, extended 
over the island of Porto Rico and its inhabitants." 
was laid on the table by the following party vote : 

Teas— 36. Allison, Baker, Bard, Beveridge, Carter. Davis, Deboe, Elklns, Fairbanks, 
Poraker, Foster, Gallinger, Gear, Hale, Ilanna, Hawley, Kean, Lindsay, Lodge, McBride, 
McComas, McCumber, McMillan, Penrose, Perkins, Pritchard, Quarles, Ross, Sewell, Shonp, 
Simon, Spooner, Thurston, Warren, Wellington, Wetmore. 

Nays— 17. Allen, Bacon, Bate, Berry, Butler. Chilton, Clark (Mont.), Clay, Cockiell, 
Culberson, Harris, Kenney, McLaurin, Morgan, Rawlins, Tillman, Turley. 

All the text-books lay down as elementary the rule that when, on April 11, 
1900, the United States had acquired Porto Rico and the Pacific Islands, all 
the laws of those islands remained in force, so far as not changed peremptorily 
by the political institutions of the United States, until Congress had legislated 
thereon. If that be so where shall we look for evidence of the character 
of our political institutions if not to the Constitution ? 

(i) Conspiracy between the republican Executive and republican Congress 
to disregard the Constitution in governiug Porto Rico is also proven by the 
republican statute of May 1, 1900, by what the President says of it in his 
letter of acceptance of a renomiuation, dated September 8, 1900, by the levy 
of tariff duties under the second section of that statute in plain defiance of the 
President's "plain duty" advice, by refusal in the law to make the native 
Cubans citizens of the United States, and by enacting that they, and all New 
Yorkers residing in the island, shall be citizens only of Porto Rico. 

Alluding to the Porto Rico law in his letter of acceptance the President 
says: 

" Congress has given to this island a goverimient in which the inhabitants •• • • elect 
their own Legislature, enact their own local laws, provide their own system of taxation, and io 
these respects have the same power and privileges enjoyed by other territories belonging to the 
United States." 



liEPUBLic OR Empire? 17 

The 18th and 27th sections of the law do not so read, hut, on the contrary, 
enact that the upper branch of the legislative assembly, exercising all local 
legislative powers, is to be appointed by the President. Porto Rico does not 
have the same power and privileges as New Mexico, which has a representative 
in the Congress at Washington. 

ij) If all other proof failed the Republican " Text Book " would establish 
the conspiracy to adopt the British colonial system bereft of an admirable 
feature of it, a court, selected from the Privy Council according to rules 
established by Parliament, to which the subjects of the Queen in all parts of 
her dominion may appeal for redress of injuries, and whoss territorial juris- 
diction expands with the expansion of the Empire. There is no such tribunal 
in the United States. 

Mr. Randolph, of the Kew York bar, in an admirable monograph on "the 
law of territorial expansion," says of this English court of appeal, that it will 
entertain an appeal from the act of a colonial governor in imprisoning an 
African chief (Sprigg vs Sigcan [1897], A. C, 238; ; from the order of a colo- 
nial court denying certain powers and privileges to a colonial legislature 
(Speaker, etc., vs. Glass L. U. 3, P. C, 560); from the judgment of a police 
magistrate in a petty colony (Falkland Islands Company vs. The Queen, 1 
Moore P. C, N. S., 299); and it will receive appeals in criminal cases generally 
whenever it appears that " by a disregard of the forms of legal process, or by 
some violation of natural justice or otherwise, substantial and grave injustice 
has been done'' (Dillet's case, 12 Appeal Cases, 459). 

But a republican Congress will not establish in the Philippines any system 
of judicature by which a native, injured in liberty, or property, by the rude 
hand of military force, can sue his aggressor in a court from whose decision 
either side can appeal to the Supreme Court at Washington. 

VII. 

The Governor of the State of New York— abandoning his duties at Albany, 
rushing westward in pursuit of his own candidacy, stoppiui,' long enough at 
St. Paul to denounce his neighbors and fallow-citizens on Long Island who 
st^md by the Democratic ticket as standing " FOii lawlessnkss and disor- 

DEK, FOR DISnONESTT AND DISHONOR, FOR LICENSE AND DISASTER AT HOME 

AND COWARDLY SHRINKING PitoM DUTY ABROAD " — lias recently Said, in his 
letter of acceptance, that Louisiana "was acquired by treaty and purchase 
under President Jefferson e.icactly and precisely as the Philippines have 
been acquired by treaty and purchase under President McKinley." It had 
by others been thought there was a difference in the acquisition growing out 
of war, conquest and the defeat of Spain. He commends what Jefferson did 
in Louisiana, and affirms that McKinley and a republican Congress have pre- 
cisely followed in the Philippines what Jefferson and a democratic Congress 
did in Louisiana, all of which Democrats deny, and for the reason that, within 
ten days after the French treaty had been ratified, Jefferson asked a Demo- 
cratic Congress to legislate, and it did legislate, but at the end of eighteen 
months a Republican Congress has not legislated for the archipelago. 



18 Republic oil Empire? 

Possibly Governor Koosevelt can somewhere find evidence of executive 
usurpation like McKinley's in ruling a territory, but if it be found it 
will be seen that the usurpation was not justified as a right, but as a 
necessity to be afterward condoned by Congress. Neither Jefferson, 
nor any Democrat, a hundred years ago, claimed to be independent 
of the Constitution in dealing with a territory. No Democrat asserted in that 
early day that a territory should have self-government before it became a 
State, or that the United Slates should get consent of a foreign people before 
conquering them iu a just war as it did Mexicans, and acquiring the conquered 
by treaty cession. No Democrat in the earlier days endeavored to assimilate 
wild Indians and uncivilized blacks with men and women of the white race. 
No one fancies, as does Roosevelt, that the removal of Seminole Indians from 
Florida, under a treaty and after the territory had been acquired from Spain, 
or the suppression of "Sitting Bull," or Sioux and Apache Indians, then 
murdering white people, are in the same category, or rest on the same princi- 
ples of public law. as govering Porto Rico. No Democrat finds fault with a 
Government over our new islands conforming to the Constitution, and which 
does not contemplate making the President a legislator. The Democratic law 
of 1803 for Louisiana recognized as binding the laws of the territory, and then 
merely empowered the President to temporarily fill the oflices, and execute 
that old system of jurisprudence. 

Till. 

The reply of President McKinley to a nomination for re-election made 
nearly thi-ee months ago, is prolix and elaborate, but not too prolix and elaborate 
for the defensive explanations required. His pathway wasfiUed with awkward 
crevasses for which a bridge of words was convenient. He strives to give 
supremacy to gold mono-metallism as an issue, despite his own dedication only 
a few years ago to silver mouo-metallism, but he devotes quite five-sevenths 
of his long document to the Philippines and "imperialism." 

He begins his defense of his own conduct as an imperialist with these 
■words : 

" The purposes of the executive are best revealed and can best be judged 
by what he has done and is doing. " 

The keynote of the pending controversy is the last clause of the ninth- 
article of the Paris treaty which reads thus : 

" The civil rights and political status of the native inhabitants of the 
territories hereby ceded to the United States shall be determined by the 
Congiess." 

Congress is not referred to by the President, but the first personal pronoun 
has never been worked more incessantly. 

The letter of acceptance reads as if he bad been persuaded, or flattered, 
into the belief that the people of the United S'.atcs have poured into his lap all 
the rights, powers and duties— executive, legislative and judicial— they pos- 
sessed, or ever could possess, to discipline the natives of the new islands into a 
fitness for self-government. 



Eepcblic ou Empire y 19 

" The Gorcrnment of tits United States, it in II " 

Of a piece with it, are the brazen conceit and affrontery — typical per- 
haps of a certain class of office-holders in all countries— which attribute in- 
dustrial prosperity in 1897, 1893 and 1893, not to a natural rebound from five 
years of depression, good crops here and bad crops there, an unusual quantity 
of gold dug from the earth, greatly increased bank credits, revived trade de- 
mand in Great Britain and Germany increasing our exports to those countries, 
higher prices necessarily enlarging the total values of the trade even although 
quantities might be stationary, but to the inauguration of SIcKinley and the 
laws enacted by a republican Congress. It would not be any more prepos- 
terous to attribute the condition of this year's cotton crop, the cyclone which 
devastated Texas and the destructive fires in New England to the Kansas City 
Convention. 

One thing only is new in the letter, and that is the date (Octo- 
ber 28, 1898) when the President ordered the American Commis- 
sioners at Paris to demand from Spain cession of the Philippines. 
A. little while before, he had preached to them of "dutj'" and 
"hunianily"; of expelling from their minds and purposes "design of 
aggrandizement " and " ambition of conquest " ; but a few months later they 
were told that "the interests of humanity" demanded both. Why so much 
time and space to the doings of Dewey, Marritt ^d the negotiation and 
ratitication of the treaty, if it be true, as he says in his letter, that he is 
"in agreement with all of those who supported the war with Spain, and also 
•with those who counseled the ratification of the treaty of peace." Upon these 
two great essential steps there can, the President adds, "be no issue, and out 
of these came all of our responsibility." 

Why, in face of what our Commissioners solemnly affirmed at Paris to the 
Spanish Commissioners, devote so much labor to a denial that any officer of the 
United States had, in the beginning, treated Aguinaldo as an ally ? 

Why publish to his countrymen a solemn declaration like this : 

" The republican party does not have to assert its devotion to the Declara- 
tion of Independence. It wrote into the Constitution the amendments guaran- 
teeing political equality to American citizenship and it has never broken them 
or counseled others in breaking them. It will not be guided in its conduct by 
one .set of principles at home and another set in the new territory belonging to 
the United States." 

One amendment referred to is the 13th, which McKlnley has, in his Sulu 
treaty, broken by recognizing slavery in the Pliilippines. He has "one set of 
principles at home" in New Mexico, and " another .set in the new territory" 
of Porto Rico, and another in the Malay archipelago. 

That is, however, quite secondary to the primary question of " imperialism " 
now pending, which relates to the«o«;r<; of the authority which President 
McKiidcy has exercised in Porto Rico and the Philippines since the treaty of 
peace was by him proclaimed on April 11, 1899. 

Under the treaty, it was the duty of Congress to take the reins of govern- 
ment of the islands, but the President would not convene Congress and it 
could not convene itself. The situation had one and only one guiding pfece- 



20 Eepublic ok Empire? 

dent, and that -was California after peace witli Mexico bad been proclaimed 
in 1848. Nothing that had happened in Europe could aid as a prece- 
dent. It was a situation under our -written Constitution. It did not 
present a question of humanity, or duty, or moral law, or international 
law, excepting as embodied in the Constitution of the Duiied Slales. or 
statutes enacted thereunder. No part of any law of nations can, in a 
question of private rights, be a part of our jurisprudence, unless the 
Supreme Court thall so adjudge. That was decided ifi the Paquate Sa- 
hana case as recently as the eighth of last January, wherein it was argued, on 
behalf of President McKinley, that decision of what is a usage of war is in his 
exclusive discretion as Commander-in-Chief in war, but the Court replied that 
he must take international law from the Court when private rights are 
involved. 

For his duty in both archipelagos after March 11, 1899, President McKinley 
had not only an executive precedent set by one of his predecessors in office but 
a judicial precedent by the Supreme Court's adjudication on President Polk's 
conduct regarding California. What that great lawyer and jurist— Governor 
Marcy— did as Secretary of War, by levying taxes in California a.id New 
]\Iesico while in our military occupation before peace came, and afterward by 
maintaining as de facto the military government existing after the war had 
ended, but Congress although often invited did not, and could not by 
reason of the slavery dispute, legislate, was then so novel, that the Whig oppo- 
sition passed three or four resolutions asking under what pretext of law he 
had acted. Several of the replies by President Polk have been published in 
the fourth volume of ' ' Messages and Papers of Ihe Presidents " and the instruct- 
ive AVar Office correspondence can be found in full in the Congressional docu- 
ments of the Thirtieth and Thirty-first Congress, and a fairly good abstract 
thereof in the Congressional Record of April 11, 1900. This is what President 
Polk said to Congress on December 5, 1848 : 

" Upon tbe exchange of ratifications of the treaty of peace with Mexico on the 30th of May 
last, The temporary governments which had been established over New Mexico and California 
by our military and naval commanders, by virtue of the rights of war, ceased to derive any 
obligatory force from that source of authority, and, having been ceded to the United States, 
all government and control over them under the authority of Mexico had ceased to exist. 

** Impressed with the necessity of establishing Territorial governments over them, I recom- 
mended the subject to the favorable consideration of Congress in my message communicating 
the ratified treaty of peace, on the 6th of July last, and invoked their action at that session. 
Congress adjourned «ithout making any provision for their government. The inhabitants, by 
the transfer of their country, had become entitled to the benefits of our laws and Cnnslittition, 
and yet were left without any regularly organized government. Since that time the very lim- 
ited power possessed by the Executive has been exercised to preserve and protect them from 
the inevitable consequences of a state of anarchy. The only government which remained was 
that established by the military authority during the war. 

" Regarding this to be a de facto government, and that by the presumed consent of the in- 
habitants it might be continued temporarily, they were advised to conform and snbmit to it for 
tbe short intervening period before Congress would again a»femble and could legislate on the 
subject. 

Strike out therefrom "New Mexico and California" and insert Porto Rico 
and the Philippines, and all will be plain to everj' voter. 



Eepiblic ok Empire? 21 

On October 9, 1848, Marcy wro'.e to the military officers in California : 
'•But the government r/5 /c/c^o can, of coarse, exercise no powers inconsistent with the 
provisions cf the Constitution of the United States, which is the supreme law of all the States 
and Territories of our Union. For this reason no import duties can be levied in California on 
articles the growth, produce, or manufacture of any State or Territory of the United State*, 
and no such dutits can be imposed in any part of the Union on the productions of California ; 
ch foreign productions as have already paid duties in any part 

Two days before Secretary of State Buchanan, by direction of the Presi- 
dent, wrote to an official on his way to California : 

" The President congrattilates the citizens of California on the annexation of their flue prov- 
ince to the United States. On the 30th of May, 1848, the day on which the ratifications of our 
late treaty with Mexico were excliaoged, California finally became a i integral part of this 
great and glorious Rei:ublic. * • » The President deeply regrets that Congress did not, at 
their late session, establish a Territorial government for California. It would now be vain to 
enter into the reasons for this omission. Whatever these may have been, he is firmly con- 
vinced that Congress feels a deep interest in the welfare of California and its people and will, at 
an early period of the next session, provide for them a Territorial government suited to their 
wants." 



the condition of the people of California is anomalous and will require 
on their part the exercise of great prudence and discretion. By the ( onclusion of the treaty of 
peace, the military government which was established over them, under the laws of war as 
recognized by the practice of all civilised nations, has ceased to derive its authority from this 
source of power. But is there, for this reason, no government in California ? Are life, liberty 
and property under the protection of no existing authorities ? This would be a singular 
phenomenon in the face of the world, and especially among American citizens, distinguished 
as they are above all other people for their law-abiding character. Fortunately they are not 
reduced to this sad condition. 

"The termination of the war left an existing government — a government rf€ /"ac^o — in full 
operation ; and this will continue, with the presumed consent of the people, until Congress 
shall provide for them a Territorial government. The great law of necessity justifies this con- 
clusion. The consent of the people is irresistibly inferred from the fact that no civilized com. 
munity could possibly desire to abrogate an existing government when the alternative pre- 
sented would be to place themselves in a state of anarchy beyond the protection of all laws, 
and reduce them to the unhappy necessity of submitting to the dominion of the strongest. 

"This government de /</c/o will, of course, exercise no power inconsistent with the pro- 
visions of the Constitution of the United States, which is the supreme law of the land." 

The main inquiry is : Where did President McKinley derive power as 
a legislator in our new islands ? His de facto government, if purely executive, 
would have been well enough, but he has ordered new laws made and old ones 
set aside. "Where is the source of that power ? He can repel insurrection there 
as he might in New Mexico, but how make laws ? He can enforce old laws and 
use existing local agencies, but by what aullioritj' create new offices and impose 
new taxes ? No President ever before claimed a rv/ht to make laws for a tei- 
ritory. Other Presidents may have jrielded to necessity and afterward asked 
indemnity of Congress. Much has been said of what JcCferson did in 
Louisiana, but one brief Special Message of his to Congress, on October 21, 
1803 (1, President's Papers, p. 302), explains all and demoostrates that he 
never fancied he had legislative power in a territory. 

" Ah : " replies McKinley, "a new war began in the Philippines on Febru- 
ary 4, 1899, by which I had new war power." Grant it, but there was no war 
in Porto Rico where the President acted the part of legislator. 



22 Eepublic or Empire? 

Perhaps the advocates of "imperialism " will contend that until Congress 
shall interfere (a republican Congress will never interfere with JIcKinley in 
the Philippines), the President will have, under the law of nations, all execu- 
tive, legislative and judicial powers in the terFitories; but the contention leaves 
out of sight the Constitution of the United States, which does not permit the 
executive to anywhere, unaided by Congress, lay taxes for the support of the 
United States. 

The only law prevailing in our new islands when peace was concluded, was 
the Constitution, the old Spanish local laws, and applicable statutes enacted bj' 
Congress. All conflicting Spanish political laws were annulled by our Consti- 
tution, but local civil laws and customs remained. All the President had the 
right to do was to execute them. This sentence from the Supreme Court 
opinion on Cross vs. Harrison makes all plain : ■ 

" The second objection states a proposition larger than the case admits, and more so that 
the principle is, which secures to the inhabitauts of a ceded conquest the enjoyment of what 
had been their laws before, until thej- have been changed by the new sovereignty to which it 
had been transferred. In this case foreign trade has been changed, in virtue of 3 belligerent 
right, before the territory was ceded as a conquest, and after that had been done iy a treaty •f 
peace the inhabitants were not remitted to those regulations of trade under which it was 
carried while Ihey were under Mexican rule, because they had passed from that sovereignty to 
another, whose privilege it was to permit the existing regulations of trade to continue and by 
which only they could be changed.'* 

Notwithstanding the dissertation on the Tagal insurrection against 
lIcKinley rule in Luzon, it is rather plain that much remains to be revealed 
regarding the early relations between the Tagals and our consular and naval 
officers. The Aguinaklo upri-sing was well timed to give President McKinley 
an opportunity to insist that the commotion at Manila on February 4, 1899, 
was of a character to enable him, if he wished it, to claim the right to continue 
the exercise of war powers in the Philippines, without a declaration of war 
by Congress, just as President Lincoln exercised belligerent rights after Fort 
Sumpter was fired upon and before Congress had declared war. Whenever an 
important election has been on in any State during the last year or two, the 
Administration has announced the Philippines war quite at an end, but it 
always revives again in a mysterious way when new belligerent power, or a 
larger army, is needed at Washington. The uprising of Aguinaldo was also 
timely, in order to enable the republican leaders and newspapers to pretend to 
bring into politics " copperheads " composed of those who, like Senator Hoar, 
denounced the President's " brutal and tactless " policy of merely nagging the 
Tagals and not quickly suppressing them as he might have done. The 
Massachusetts Senator has been forgiven by the Republicans during, at least, 
the Presidential contest of 1900, much as Vallendingham was forgiven by 
President Lincoln during the Presidential contest of 1864 and permitted to 
return to Indiana from Canada. 

The Republican candidate says, in his letter of acceptance, that the insur- 
rection iu Luzon was practically ended last March. His second Commission 
headed by Judge Taft, reported on the 21st of last month to its Chief that in 
nearly all Luzon the revolt had been suppressed. On what pretext, then, is 
the President authorizing that Commission to make laws '? From what source 



Republic or Empiee? • 'A3 

has he the power if peace exists ? He has no more warrant of law to 
do what he describes himself as doing in the Philippines than he has 
to exercise the functions of the New York Assembly when sitting at 
Albany. 

The lawyers of our country should be interested to know which one of 
them advised the President that he had constitutional power to announce his 
order of April 7, 1900, to the Secretary of War regarding the second Philippines 
Commission. Was it Mr. ilagoon ? In that order the republican candidate 
directs the Commission, by these words, to exercise legislative powers : 

"Beginning with the 1st day of September, 1900, the authority to exercise, 
subject to my approval, through the Secretary of War, that part of the power 
of government in the Philippine Islands which is of a legislative nature is to 
be transferred from the Military Governor of the islands to this Commission, 
to be thereafter exercised by them in the place and stead of the Military Gov- 
ernor, under such rules and regulations as you shall prescribe, until the estab- 
lishment of the civil central government for the islands, contemplated in the 
last foregoing paragraph, or until Congress shall otherwise provide. Exercise 
of this legislative authority wiU include the making of rules and orders, having 
the effect of law, for the raising of revenue by taxes, custom duties and 
imposts. " 

The Constitution commands that "all bills for raising revenue shall origi- 
nate in the House of Representatives." The exclusive right to legislate for the 
Philippines vested in Congress on April 11, 1899, and there has not since been 
a place for the exercise of legislative power by the Executive. In the words 
of the Supreme Court, " Congress cannot delegate legislative power to the 
President, is a principle universally recognized as vital to the integrity and 
maintenance of the system of government ordained by the Constitution." 
(Field ts. Clark, 143 U. S., 649, 692.) 

There should not be mystery and concealment regarding this supreme issue 
to be decided by the ballot boxes on the 6th of November. It should be plain 
to every voter ! Is the Constitution to exist at Washington as a restraint on the 
executive and legislative branches of our Government, when disposing of, and 
making needful rules and regulations respecting our new islands and all our 
territories ? Are the decisions of Chief Justice Marshall and the Supreme 
Court, regarding llie supremacy of the Constitution over all and every act of 
the President and Congress, alike in war and in peace, to stand or be over- 
thrown ? No voter should doubt — republicans in the Senate have fore- 
shadowed it — that the Republican party, which "packed" the court in order 
to reverse its previous judgment on the legal tender greenback cases, will, if 
its candidates shall prevail, put pressure again on the Supreme Bench to 
reverse, in the interest of "imperialism," its previous decisions. The strain 
will come it the voters shall, by reelecting McKinley, permit it. The court 
can now make of the Constitution what it pleases in the sensC of the power of 
the President and Congress over the territories. If the republican candidate 
and a republican Douse shall be elected next November, in order to exert 
improper pressure on the judicial bench, and such pressure shall be exerted and 
prevail, the consequence will not in our day be curable or reparable. The use 



24 Eepubhc or Empire? 

of a foreign war to accomplish a partisan result will have done its fatal work. 
Better men in 1004, at each end of Pennsylvania avenue, cannot restore a 
Constitution thus dethroned. Other consequences, such as unsound money 
for awhile, or temporary business depression, can be repaired, but not the con- 
sequences of a subservient Supreme Court " packed " to surrender the Consti- 
tution by opening a gate at a vital point. 

Can voters be hoodwinked and misled by the imperialist cry that the party 
of Jefferson and Jackson will, if successful in November, Impair the income 
of the rich as well as of wage-earners and salary-earners ? Not if those 
who have persuasive voices and pens will point out the fact, that in 
Jefferson's first campaign for the Presidency, the Federalists, and in 
both of Jackson's campaigns, the Whigs, said of Democratic candidates, 
and of the party supporting them, almost the same things that the impe- 
rialists are now uttering against Bryan and those upholding him. 
In Jackson's day the Whig newspapers represented Tammany Hall, and 
the up-State Albany "regency" controlled then by Marcy, Van Buren, 
and Silas Wright, to be " monsters of - iniquity," bent on despoil- 
ing the rich, just as now do Republican newspapers represent the 
Democracy. 

IX. 

The republican candidate for the Presidency nas, by his letter of acceptance, 
formally raised a question which, so far as I know, hud not been brought into 
prominence by the democratic candidate, or by any Democrat. That question 
relates to responsibility for American lives lost at Manila on February 4, 
1899. The urging of voters to inquire into that responsibility is really the 
gist of the President's elaborate document sent to Senator Lodge, and it 
offers a good opportunity to measure the writer's qualifications for dis- 
cussing such questions. He begins in this way : 

"It has been asserted that there would have been no fighting in the Philip- 
pines if Congress had declared its purpose to give independence to the Tagal 
insurgents." 

His only reply is : " The insurgents did not wait for the action of Congress. 
They assumed the offensive, they opened fire on our army." That is true, but 
why did they not wait ? The next sentence is no answer : 

" Those who assert our responsibility for the beginning of the conflict have forgotten that 
beforetlie treaty was ratified in the Senate and while it was being debated in that body, and 
while the Bacon resolution was under discussion, on February 4, 1899, the insurgents attacked 
the American army, after being previously advised that the American forces were under orders 
nut to fire upon them except in defense.'' 

" My," not "our" r/!S])07mij7% would have been more accurate I The 
voters have the facts in mind ! The republican candidate adds : 

" The papers found in the recently captured archives of the insurgents demonstrate that 
this attack had been carefully planaed for weeks before it occurred. Their unprovoked assault 
upon our soldiers at a time when the Senate was deliberating upon the treaty shows Ihit no 
action on our part except surrender and abandonment would have prevented the fighting and 
leaves no doubt in any fair mind of where the responsibility rests tor the shedding of American 



Eepublic or Empire? 25 

How m;iny " weeks" ? Did they begiQ to run from the end of December, 
188S ? What the President intended, like Governor Roosevelt, to hint was 
that responsibility for the blood shed is on the Tagalogs, and those in the 
Senate, or elsewhere in our country, who criticised the President's 
conduct immediately after the treaty had been signed at Paris on December 10, 
1898. 

The following facts will throw light on the question raised by the repub- 
lican candidate: 

Only eleven days after the signing of the treaty, nearly two mouths before 
our Senate consented to what had been concluded at Paris, more than three 
months before Spain had ratified it, and more than four months before President 
McKinley had proclaimed (April 11, 1899) an exchange of ratitications, he, on 
December 21, 1898, issued a military order declaring "the future control, 
disposition and government of the Philippine Islands are ceded to the United 
States," and the military government at Manila must, " with all possible dis- 
patch" be extended over the whole of the Archipelago. The premise of the 
order was false ! The treaty of cession was not binding till April 11, 1899. 
No one should say that the December Executive order was issued out of 
ignorance, or deny that it was made in violation of the Constitution and ia 
usurpation by the President of the treaty-making power, for he must have 
known that, under the Constitution, the Executive cannot, unaided by statute 
or treaty, enlarge the sovereignty of the United States and the territorial juris- 
diction of Congress. 

The text of that December order can be found in "Messages and Papers 
of the Presidents " (vol. 10, p 219), and any voter comp iring it with the four 
words omitted by the President in the sentence therefrom that he quotes, will 
discover what there was in the order that he wished now to be kept concealed. 

When I commented on that order nearly a year ago, I was unaware of facts 
concerning it disclosed by Senator Hoar last April in a letter published in the 
Congressional Record, p. 4363, in which he says : 

I have carefully read Dewey'8 dispatches, including the testimony of two naval officers, 
whom he i-ent on a two monlhs' tour through Luzon, before the conflict between our troops 
and Ibose of Agninaldo, which, under hia own signature, he declares to be the best statement 
of the condition of things there that has been made. I have read many of the dispatches of 
General Otis. A few of these have been published. Some of them have, so far, been withheld 
from public knowledge. They establish, beyond reasonable doubt, clearly : 

Three— That that people have from the beginning desired independence and desire it now. 

Four— That this desire was communicated to our commanders when they gave them arms, 
accepted their aid, and brought Aguinaldo from his exile when he was put in command of 
.30,000 Filipino soldiers, who were already in arms and organized. 

Nine— That th« ontbreak of hostilities was not their fault, but ours. We flred upon them 
first. The (ire was returned from their lines. Thereupon it wa3 returned again from us, and 
several Filipinos were killed. As soon as Aguinaldo heard of it he sent a message to General 
Otis saying that the firing was without his knowledge and against his will ; that he deplored 
it, and he desired hostilities to cease, and would withdraw his troops to any distance General 
Otis should desire. To which the American Ccncral nplied, that as the fighting had begun, it. 



2C) Eepublic ou Empire? 

Senator Hoar annoimced that he had read in the secret archives of the "War 
Office wliiit Otis had written. I prefer to let the Senator speak in his own 
words, as follows : 

" Now, on December 28, 1898, the President sent to Otis a proclamation, which he com- 
manded him to issue. Otis, on reading it, to use the language of his report : 

" After fully coneidering the President's proclamation and the temper of the Tagaloe, with 
whom I was in daily discussion of political problems and the friendly intentions of the United 
States Government toward them, I concluded that tjjere were certain words and expressions 
therein, such as ^ sovereignty,'*' right of cession,' and those which directed immediate occupa- 
tion, etc., though most admirably employed and tersely expressive of actual conditions, might 
be advantageously used by the Tagalo war party to incite widespread hostilities auwng the 
natives. The ignorant classes had been tauHht to believe that certain words, as ' sovereignty,' 
'protection,' etc., had peculiar meaning disastrous to their welfare and significant of future 
political domination." 

The ignorant people of America have been taught to believe just such things. 1 have seen 
such things in the writings of Washington and Adams and Jefferson, of Whittier and Garrison 
and Nathan Dane and Ilantoul, and others of the men of Essex. Now Otis goes on to say : 

" It was my opinion, therefore, that I would be justified in so amending the paper tnat the 
beneficent object of the United States Government wouid be brought clearly within the com- 
prehension of the people." 

Wh;reupon Otis proceeds to amend the President's proclamation by strilting out every- 
thing in it which contains a purpose to assume sovereignty or protection, and which was 
significant of future political domination, and instead thereof he issued, on January 4, 1899, 
less than eight weeks before the outbreak of hostilities, a proclamation which he gives in a 
roport, in which he suppressed all these utterances^ and assures them that it is ttie purpose of the 
people of the United States to give them, " in every possible way, the full measure of individual 
rights and liberty which is the heritage of a free people." And he adds : 

" I am convinced that it is the intention of the United States Government to seek the 
establishment of a most liberal government for the islands, in which the people themselves 
shall have as full representation as the maintenance of law and order will permit, and which 
shall be susceptible of development, on the lines of increased representation and the bestowal 
(if increased powers, into a government as free and independent as is enjoyed by the most 
favored provinces of the world." 

Unfortunately the good influence of this modification of the President's 
action was frustrated by the conduct of General Miller, who, outside of Manila, 
published the original order. 

Senator Hoar then asserts this : 

"Otis says that the proclamation which actually came out, through Miller's 
<leparture from his instructions, leas calculated to cause, and did came, the lios- 
tihtics and excite alarm and indignation in the bosoms of that freedom-seeking 
people." 

If Senator Hoar truly repre.sented what he had read, if he believed 
that General Otis wrote what he declares he read, and that it was true, and if 
he now believes it to be true that McKinley's December order caused the first 
spilling, by Ihe Tagals, of American blood at Manila, on February 4, 1899, 
then right-minded volers will think the Senator should, to be consistent, also 
declare that Jlr. McKinley better deserves impeachment than a re-election to 
the Presidency. 

Peury Belmont. 



Eepublic or Empire? • 27 



Beginnings of Imperialism. 

[From, the New York Herald of June 17, 1899.] 

Mr. Perry Belmont, who sails this morning for Europe on the "Cam- 
pania," while speaking yesterday with political friends concerning " imperial- 
ism " as a probable issue in the nest campaign for President, said : 

If such a severe te.st shall be made as a choice between 
abandoning the Constitution and abandoning the Philippines, 
Democrats will, in my opinion, let the Philippines go rather 
thau the Constitution. But no such test is likely or necessary. 

If Congress is not to assemble before the usual time, there 
will not be national politics during the next six months for 
those outside the Administration circle. 

The managemeut of our new islands, including taxation 
and expenditure, is now treated at Washington as purely an 
executive affair. 

The President should satisfactorily punish Agu'naldo and 
his followers for their assault early last February on our 
army at Manila. When that has been accomplished, and 
Congress has assembled, there will be real problems growing 
out of expansion tliat will press for solution. 

Then may come a crisis, created not only by territorial 
enlargement in the tropics and the sudden accession to our 
population of millions of Asiatics, but by proposed plans for 
their future government which will ignore our fundamental 
law. 

Kepublican lawyers have been busy driving ingenious 
tunnels underneath the Constitution in order to open a feasible 
government route between Washington and Manila, and 
republican opinion seems to be drifting to the conclusion that 
Cuba cannot be pacified, order established in Porto Rico, 
or the natives in the Philippines civilised if the Constitution, 



28 • Republic or Empire? 

its guarantees and limitations, are to liave sway over the new 
islands as they now have over our home territories. The 
Eepubiican party must therefore in the end take its stand on 
the demand that the President hokl, exercise and represent 
in those islands the whole power of " sovereignty," which is 
the power to govern unrestrained.^ 

He is now exercising such power without much question, 
or regret, from any source, and yet no one has explained the 
source of that power. The Eepubiican leaders act as if con- 
fident that neither the voters, nor the Supreme Court, will 
impede a government in the Philippines on the English plan 
as applied in India, Africa and in British crown colonies. 

Republican contention now is that the treaty ceding our 
new islands did not confer any political or civil rights on the 
natives of Cuba, Porto Rico or the Philippines. If the 
Republican party shall not modify that couteution, or if 
Congress shall refuse to take the new islands out of the hands 
of the War Department, there will be interesting politics next 
year over the authority of Congress and of the Executive. 

The Republicans maintain that our title to the Philippines 
has not been so completed as to put them under the Consti- 
tution ; that even if Congress shall legislate over them, the 
President can still exercise, as now, the rule of a military 
conqueror, and that when Congress does legislate, it need not 
regard the Constitution. 

Hitherto Congress has collected the same taxes in the 
territories as in the States and made uniformity the rule, but 
if the party in power at Washington Ihall plainly declare its 
purpose to tax the territories and rule therein without any 
regard for the Constitution, Democratic Toices and votes will 
be audible in denunciation. 

' When the Republican Congress had assembled in December, 1899, it did 
take that stand. It refused to execute the stipulation of the treaty requiring 
it to define the civil status and political rights of the native inhabitants of the 
new islands. It did not provide a civil government for them, but permitted 
the President to govern millions of people in time of peace, as in Porto Rico, 
under martial law and under his claim of prerogative "belligerent right," as 
in time of war. 



Republic or Empire? 29 



Imperialism and the Boers. 

[Letter to George W. Van Siclen, Secrdary of the Mm Mcetinj at Car- 
mgie KM, October 11, 1S93, to expre-,» aympathy with the. B)eris.\ 



New York, October 10, 1899. 

George W. Van Siclen, Esq., 

No. 141 Broadway, N. Y. : 

Sir — I regret extremely my iiiability to be present at the 
meeting to be held Wednesday, October 11. 

The principle of home rule is very dear to the people of 
the United States. Ifc means the internal sovereignty of 
every independent State. Under it, the citizen, or subject, 
of a foreign country has not the privilege of citizenship 
until he has, by his own act, made himself a citizen of the 
State into which he has come. Till then he has a right to 
demand in a foi-eign state only such good treatment as his 
government can, under treaty, or international law, insist upon 
in his behalf. 

The Lord Chief Justice of England, when trying the 
Jamieson raiders, charged the jury that " the Queen's Gov- 
ernment recognizes the complete independence and autonomy 
of the South African Republic, subject only to the restrictions 
of the Convention of 1884, to the effect that the South 
African Republic should have no power to como into any 
treaties without this country's consent." 

The internal sovereignty of the Transvaal was tlius pro- 
nounced to be complete. If that was good law in 1896, why 
not to-day ? What would we say if England were to insist 
that, because Englishmen owned a majority of all New York, 
or Coloratlo, railways, industrial properties and mines, they 
should constitute a determining factor in the government of 
those States? 



30 PiEPaBLic OB Empire? 

A different question would be presented if either State 
refused Euglislimen rights recognized by public law, by reci- 
procity and by international comity. 

There are said to be thirty, or even fifty thousand " Ouit- 
lauders," recently arrived in the Canadian gold fields at the 
Yukon headwaters. Will they receive on demand representa- 
tion and a ballot in the local Parliament of the northwest ter- 
ritories of Canada ? 

The dispute in its last analysis is one of law, both sides 
professing to stand on written agreements, the Transvaal con- 
ceding the right of interference from Loudon under the con- 
vention of 1884, England claiming the right to interfere under 
more than one convention and international law. It is there- 
fore a dispute pre-eminently suitable for arbitration. 
Yours truly, 

Pkeey Belmont. 



Republic ou Umpihe? 



Congress, the President and the 
Philippines. 

[From the Nouth American I{E^TEw of December, 1899.] 

The country has expressed, with more or less distinctness 
and iinanimitr, a desire that Congress, when it assembles, 
shall legislate on the civil rights and political status of the 
native inhabitants of the islands recently ceded to the United 
States and on taxation reform, currency and banking reform, 
and trusts. 

There are reasons why the first-named of those subjects 
of legislation should have jarecedence, and the civil rights 
and political status of eight or ten millions of people be not 
postponed till after enactments relating to the other three 
topics. 

The millions of native inhabitants of the ceded islands 
have Jiot now, under the Paris Treaty, defined civil rights. 
Tiie inhabitants who were born in Spain have rights 
stipulated by the treaty, but the natives have none. The 
United States promised Spain that Congress would determine 
" the civil rights and political status of the native inhabi- 
tants." That obligation is as yet iiufulfilled. 

It is unusual for human beings not to have a nationality. 
Spain was constrained to abandon those natives, and sunder 
their allegiance to her. The United States did not by the 
treaty make them citizens, nor naturalize them, nor give them 
an opportunity to become citizens. Probably the wisest 
lawyer cannot say whether the natives can leave the islands 
till Congress has given permission, although the right of 
expatriation, repatriation and naturalization is cherished 
in our country, nor whether the natives now owe such 
allegiance to our Government that the3- can be punished for 
treason if they levy war on the United States. 



32 Eepdblic on Empike? 

The ijrecise condition, in our American law, of inhabitants 
of a country ceded to the United States is obscure till Congress 
luis made a defiuition, if the treaty of cession does not pre- 
scribe it. The Supreme Court is reported as saying in 
Kapeutigny's case, that "the conqueror, who has obtained 
permanent possession of the enemy's country, has the right to 
forbid the departure of his new subjects or citizens from it." 
If the native inhabitants of the Philippines cannot depart 
therefrom without permission from Washington they are like 
medieval feudal serfs. 

Up to the recent treaty, cessions of foreign territory to the 
United States determined the status, as to citizenship, of the 
inhabitants. The Spanish treaty, ceding Florida, admitted 
them, declared the Supreme Court in Canter's case, " to the 
enjoyment of the privileges and immunities of the citizens of 
the United States." Tiiat was the invariable rule of our 
treaties of cession up to 1898. 

Was it expedient to make a new departure in negotiating 
the recent treaty, whei-e the two chief points of contention 
were the Cuban debt and the cession of the Philippines? 
Denying that, under the August protocol, the American pleni- 
potentiaries were entitled to demand cession of sovereignty 
over the Philippines, Spain proposed to submit that question 
to arbitration, but the American plenipotentiaries rejecting 
the proposal, offered to Spain twenty millions for the Philip- 
pines, which offer Spain accepted. Thereupon the rights of 
the inhabitants to choose their citizenship was considered, 
and it was agreed that the natives of Spain be allowed a year 
in whicb to decide Avhether or not to remain Spanish sub- 
jects, or adopt the nationality of " the territory " in which' 
they might reside, i but to the natives of the islands that was 
refused by the American plenipotentiaries. Their civil and 
political rights were, by the ninth article, put absolutely in the 
hands of Congress which, our plenipotentiaries declared, "will 
enact laws to govern the ceded territories." That pledge, as 
an inducement to the signatures of tlie treaty, should be 

' What is the "nationality " of the territory in which the natives of the 
new islands are now residing ? Is it not American '? 



Republic or Empire? 33 

promptly met bj fulfillmeut. The treaty does not declare 
that the "United States" (as in the fourth section of the 
fourth article of the Constitution relating to a " guarantee of 
a republican form of government") or the President, but 
Congress shall determine the rights of the natives. 

Existing uncertainty regarding the citizenship of children 
of natives born in the.islauds since April 11, 1899, is another 
reason why Congress should now clear up the question. The 
fourteenth article of the Constitution declares that " all jjer- 
sous born, or naturalized, in the United States, aud subject 
to the jurisdiction thereof, are citizens of the United States 
aud of the Slate wherein they reside," and the fifteenth 
article adds " that the right of citizens of tiie United States 
to vote shall not be denied or abridged, * * * on account 
of race, color, or previous condition of servitude." 

If the Philippines were " in " the United States on April 
11, 1899, and a child of a native was there born " subject 
to the jurisdiction thereof," then such a child became a citizen 
despite any present or future enactment by Congress. "Was 
and is the Philippine archipelago " in " the United States ? 
The treaty is silent on that question. If the parents and the 
child, being " in the Philippines," were not subject to the 
jurisdiction of the United States, then to the jurisdiction of 
what country were they, and are they now, subject ? If such 
a child came to reside in New York, would it be a citizen of 
New York? It has been recently decided by the Supreme 
Court that a child even of Chinese parents is, if born iu one 
of our States, a citizen of that State, aud of the United 
States. Ptesiding in Manila, the child would not, of course, 
be a citizen of any State of tlie United States, but tinder the 
fourteenth article would the child not be a citizen of the 
United States, and would it not have a status defined by the 
Constitution ? Congress should express its opinion, i 

' "Imperialists " affirm that a chikl born in the Philippines after April 11, 
1899, whin the treaty was procluimoil, is not a citizen of the United Slates, 
because, since the archipelajro is not (as they say), a part of the Unilcil States, 
the chil<l was not born within the United Slates, because the Fourteenth 
Amendment is ineffective outside of the forty-live States, and because under 
Secretary Knots contention the natives of the archipelago cannot "assert 
against the United States any legal right whatever not found in the treaty," 



34 PiEPUBLic OR Empire? 

There is a most cogent reason, growing out of tlie Federal 
revenue, wliy legislation by Congress regarding Porto Eico 
and the Philippines should have priority, which is the doubt 
whether or not importations from those islands into our home 
ports are dutiable, and whether or not Congress is consti- 
tutionally bound to levy and collect duties on foreign imports 
into those islands uniform with those levied and collected at 
our home ports on like articles. The Constitution is exialicit 
that " all diities * * * shall be uniform throughout the United 
States." 1 Will Congress declare that the word " throughout" 
and the restriction apply only to the ports of forty-five states 
now in the Union V The Supreme Court has twice decided 
that the words " throughout the United States " embrace all 
of what Chief Justice Marshall described as our " country." 

There is another reason why the Philippine problem 
should have priority, which is that "involuntary servitude" 
exists there in the form of Mohammedan slavery, and debt 

which only stipulates that Congress shall determine both the civil rights and 
the political status of the natives. The Supreme Court, however, has decided 
(169 U. S. Reports, 649), that " in the United States " is equivalent to " within 
the limits of the United States" as area, and "within the sovereignty of the 
United States." The designation "citizens of the United States" may 
embrace others than citizens of the States. The Constitution declares that 
a Senator from a State shall have been "nine years a citizen of the United 
States," but if New Mexico were admitted as a State it will surely not be 
claimed that one presenting himself as her Senator, who had been born in New 
Mexico since 1848, always resided there, and a citizen of the United States 
nine years, could not be her Senator because not nine years a citizen of a 
State. Nothing is left to the " imperialists" but the vain contention that the 
Treaty of Paris has suppressed the Fourteenth Amendment. 

' One of the most enlightening speeches on the Porto Rico Tariff Law in 
the last Congress was that of Judge Crumpacker, a Republican from Indiana, 
delivered in the House April 11, 1900. He presented with exceptional clear- 
ness the relation of territories to the Constitution and to Congress. He ex- 
plained that territorial government is not self-government and is not " Home 
Rule," such as a State has, and for that very reason Congress should make it 
as popular as possible and should make the territorial period as brief as can be. 
He demonstrated that the Republican party came "into existence as the 
champion of the theory that the Constitution extends to territories." His 
exposition of taxation and representation in the territories was excellent. He 
said : 

When the Revolutionary fathers came to frame their own government, so 
jealous were thev of the power of taxation. <!o fearful were they of its abuse, 
that they refu.sed to confer it upon tin- r .,nf, drrai y at all. They provided a 
system of contributions to be levied ii|i mi tin Siaics, with no power of enforce- 
riient. It was a melancholy failure, :iii'l tin- inr^iiit Constitution followed. 

In the light of history, and in view of Ihuir own experience, the taxing 
power was safeguarded in every possible manner. The principle that taxes 
could only justly be levied by the taxpayers was preserved. The Constitution 



Kepuelic or. Empike? 35 

slavery, presenting, on the one hand, the relation of the slave 
to his owner as property, and on the other hand, to the 
United States as a human being. The thirteenth article of 
the Constitution forbids slavery, or involuntary servitude, to 
exist " within the United States, or any place subject to their 
jurisdiction," except as a punishment for crime for which the 
party shall have been duly convicted by a common law jury. 
The pens of pessimists and cynics in our politics will be 
sharpened if the Republican party in the present Congress, 
born as that party was, less than fifty years ago, of hostility 
to slavery and polygamy in our territories, shall now protect, 
or even tolerate, those " twin relics " in the Philippines. 

Besides those questions, arising under the last clause of 
the ninth article of the recent treaty, there are innumerable 
others growing out of the first ten additions, or amendments, 
to the Constitution. The first amendment, which is addressed 
to Congress by name, forbids it to do certain things, and 
the United States to do anywhere within its jurisdiction 

declares that " all bills for raising revenues shall originate in the House of 
Representatives." Taxation and representation is an active, living principle 
to-day and will continue to be as long as there are people to govern. But it 
has a practical operation when applied to republican government. The 
philosophy of the principle is that taxes shall be imposed only by those who 
pay them, and self-interest is the highest guaranty against immoderation and 
abuse. 

But. sir. when the Constitution was ordained we had all the Northwest 
Territory— an empire within itself — which it was expected would be carved 
into Stales. Under our plan of government sovereignty is in the people of the 
States, and, in the probationary State, the Territories would be governed by 
Congress. Congress would impose taxes upon the people of the Territories 
without their consent, and to provide acainst the abuse of that power the 
Constitution was made to declare that " all duties, imposts, and excises shall 
be uniform throughout the Cniti'd States." The only general power of taxa- 
ation conferred upon Congress is granted with that litnitation. Congress by 
express provision is given power to levy only a general uniform tax, and that 
limilnlion goes icherecer the power of taxation extends. Congress cannot carry 
into Territories or islands greater or different powers than those it possesses. 

Thus we said to the people of the Territories, in the most solemn manner, 
" While you have no representation in the General Government, i/ou shall bear 
only tlie same rate of taxation that we voluntarily impose upon ourselves." What 
higher guaranty of justice could be given ? And that guaranty has been 
religiously observed in all our dealings with the Territories, and it fully pre- 
serves the principle of taxation and representation. The proposed tariff upon 
Porto Rican trade violates that guaranty and contravenes the great principle 
underiying the Federal system of taxation. If we can levy a larilT at all 
against .Vinerican territory in contravention of the principle of uniformity, 
there is no limit to our power. We may levy 1.5 per cent, of the Dinglcy rate 
now, the next Congress may levy the full Dingley rate, and the next may 
double it." 



36 Eepublic or Empire? 

or under its sovereignty the enumerated acts, or to 
permit, in time of peace, the tyranny known as martial law. 
Will any one, after reading that first amendment of the Con- 
stitution, contend that Congress can, no matter what is in a 
treaty of cession, establish in any colony, or dependency, 
systems of religious faith and worship, or prohibit the full 
exercise of any system, or abridge free speech or the right of 
petitioning Congress to redress grievances ? 

The war against Spain, and the treaty ending the war and 
securing peace with Spain, are not now in issue. Those great 
transactions have been closed. The treaty has been, since 
that date, a supreme law of the land. The Philippines and 
Porto Rico are possessions of the United States by as valid 
and secure a title as are now New Mexico and Alaska. 

After Dewey had conquered the Bay of Manila, was its sov- 
ereignty in the United States or in Spain up to April 11, 1899? 
There have been two theories regarding the possession of sov- 
ereignty over an area conquered and actually occupied, either 
by a foreign enemy, or by internal rebels. One theorj', and an 
old one, is that it was in the United States, but the more 
modern and probably the better one is that the United States 
had full rights of occupancy and government, but the sover- 
eignty of Spain was intact +ill the conquest had been com- 
pleted by treaty, although the United States had legal 
authority to do there whatever was necessary for the prose- 
cution of war. The Filipino insurgents were rebels against 
Spain. They had, outside of Manila, subdued Spanish 
resistance, and occujDied as against Spain, all of Ltizon, as 
the Schurman Commission has recently declared. Taxes 
were paid to the insurgents and they were the de facto rulers, 
precisely as before the protocol of August 12, 1898, Dewey 
ruled in the harbor, and afterward Merritt, or Otis, ruled in 
the city of Manila. The Paris treaty was negotiated on the 
theory that Spain held the sovereignty and ceded to the 
United States a valid title to sovereignty over the entire 
archipelago. The fact that Luzon was, outside of Manila, 
held by the insurgents as conquered and occupied, and the 
United States had not at that time sovereignty over even the 



Kepublic or Empire? 37 

city, bay aud harbor of Manila, should have constrained the 
President to be passive aud unaggressive under the August 
protocol till the treaty had been ratified, and the ratifications 
exchanged. 

That much-debated second clause of the third section of 
the fourth article of the Constitution, relating to the govern- 
ment of territories by Congress, requires a " belonging " to 
the United States. If Congress has the right to govern colo- 
nies and dependencies, not from the clause just referred to, 
but from the right to acquire them, or from the former and 
latter combined, then obviously acquiring and possessing the 
sovereignty are a condition precedent to governing. 

Since April 11, 1899, opposition to enlargement of territo- 
rial area has not been a feasible and winning issue, in a 
political sense, but the immediate application by Congress of 
the Federal Constitution to such recent enlargements still 
holds the field as the pre-eminent duty of the legislative 
power. The Government of the United States, created 
by the Constitution, cannot disregard the Constitution 
and require or authorize acts to be done which the 
Constitution has forbidden. Congress cannot destroy limi- 
tations on its own powers over states, territories aud depen- 
dencies. The Government cannot wander into the Orient so 
far that the Constitution is inojjerative. 

In an interview published last June, I said that if such a 
severe test shoixld be made as a choice between the Constitu- 
tion or the Philippines, Democrats would, in my opinion, let 
the Philippines go, but no such test is likel}' or necessary ; that 
the President should satisfactorily punish Aguinaldo and his 
followers for their assault, early last February, on our army 
at Manila, and when that has been accomplished, and Congress 
has assembled, there will be real problems that will press for 
solution. 

An enlargement of the area of the United States is not 
to be decried, if an expansion of their political institutions, 
as prescribed by the Federal Constitution, shall accom- 
pany the territorial enlargement. Democrats do not con- 
demn the successive enlargements which their party 



38 Kepublic or Empire? 

made under treaties with France in 1803, with Spain 
in 1819, and with Mexico in 1843 and 1853, but which the 
Whig party condemned. In all of them the Constitu- 
tion expanded over the acquisitions. No one now denies that 
the Constitution is over New Mexico, but Republicans 
deny that the Philippines are a pari of the " United States," 
as the term is used in the Constitution. They declare that 
the Constitution will not be over the Philippines till 
after Congress has placed it there, i arguing that the treaty 
ceding the Philippines is so radically and intentionally unlike 
all former treaties of cession that no judicial decision regard- 
ing " territory " can be a precedent ; that in all former treaties 
it was stipulated that the people of the ceded possession 
could, if remaining therein, be citizens of the United States ; 
that the body politic, described as " the United States," 
embraces, in strict law, only " States " ; that the Constitution 
restrains Congress only when legislating for " States " and 
their inhabitants, and that, therefore, the Philippines are a 
dependency outside the Union and the Constitution till Con- 
gress shall bring them in by appropriate legislation. 

A Eejjublican argiimeut diligently put about of late and 
denying that Congress will be restrained by the Constitution, 
in executing the last clause of the ninth article of the 
treaty with Spain, is something like this : 

The Constitution has created two kinds of jurisdiction — one 
for internal and one for external affairs, in which last the new 
islands are included. The former jurisdiction is now confined to 
the existing forty-five States, and is limited in scope, but the 
latter is unrestrained, excepting possibly by the law of 
nations. The Government of the United States can lawfully 
do all that any nation can, unless the Government hamper 
itself by treaty or by a statute and accept the Constitution as 
a restraint. Therefore, as the treaty with Spain has not im- 
posed any restraint on Congress, the legislative power will be 
unimpeded in Porto Eico and the Philippines, and till Con- 
gress shall have legislated to the contrary, the President will, 

' If the Constitution extends over a territory only because placed there by 
Congress then Congress can withdraw it. 



Kepublic or Empire? 30 

under the law of nations, have a free hand in the islands. 
Will Congress abstain from enacting restraint ? 

" Imperialism " exultingly reminds us of the truth that a 
judicial precedent, although made by Marshall or Taney, can- 
not bind, under the recent treaty, excepting in a case the facts 
of which cannot be distinguished from those of the decided 
case, and that therefore there are no binding precedents for 
the questions arising in governing Porto Rico and the Philip- 
j)iues. What then is to restrain party passion in Congress, 
from enacting an ex post facto law, or making arrests by gen- 
eral warrant, or prosecuting a second time for the same 
offense, or making property of a human being, or taking 
private property for a public purpose without payment, or 
denying jury trials, or depriving persons of life, liberty or 
prosperity without due process of law, or confiscating prop- 
erty held by churches, Catholic or Protestant, by monasteries, 
convents, priests, monks or friars ? 

Empire, Emperor and Empress are now captivating words 
all over the world. They are modern revivals of the old. It 
is less than a quarter of a century since, by act of Parliament 
under Lord Beaconsfield, the Queen of the United Kingdom of 
Great Britain and Ireland assumed the title of " Empress of In- 
dia," the great dependency being as much outside of the United 
Kingdom and the British Constitution as the Philippines would 
be outside of the United States and the American Constitution 
— if those to whom I have referred carry out their intention. 
" Territories " are not new in our political system. The word is 
in our Constitution. There have been differences of opinion as 
to whether or not the Constitution, propria vigore, covers a 
foreign territory as soon as acqiiired, as well as over the power 
Congress can exercise in a territory. The last question pre- 
cipitated the war of the secession. Whether or not the 
amendments of the Constitution enforcing trial by jury must 
be applied in a territory has, since then, been repeatedly con- 
sidered by the Supreme Court. 

If the Pliilippiues are not to be "a part" of the United 
States, nor to be under the Constitution, nor to have a civil 



■iO Eepublic or Empire? 

government, v.'hy may not the titular designation of our 
Executive be " President of tlie United States of America and 
Emperor of the Philippines "? 

Debate in Congress ought not to be postponed, evaded or 
avoided by jjleading an existing war in the Philippines. 
There is no war in Porto Eico. It is due to the Porto 
Kicaus that they know whether or not the American Consti- 
tution and the Supreme Court are to protect them. The 
constitutional question of the power of Congress is in Porto 
Eico what it is in New Mexico. Congress cannot go outside 
the Constitution in the exercise of civil authority iii Porto 
Eico. 

The end and aim of war is peace, and the quickest route to 
peace with the Filipinos is for Congress to intervene, inquire 
into the facts, convince the natives of the good faith of the 
United States, and prescribe terms of pacification. "When 
that has been done, the natives will know their fate. What- 
ever the reason for retaining the Philippines — whether as a 
trust only for the good of the native inhabitants, or as a 
military and naval station, or as a trading country under our 
flag, or a stepping-stone to Asia, or as an American commer- 
cial rival to British Hongkong and Singapore, or as a point 
of easy dejjarture when China, the " sick man," is on a death 
bed — the first and indispensable thing is for our Congress to 
win and deserve the couhdeDce and friendship of natives now 
alienated from us. 

There are those who say that if the Government at Wash- 
ington is to be restrained in dealing with the Philippines, by 
the taxing clauses of the Constitution, by the first ten amend- 
ments, and by the thirteenth and fourteenth as well, then it will 
be impracticable to rule all over the islands. A code of criminal 
law in the island of Sulu, for example, requiring conviction for 
crime by a jury, an indictment, a judge and petit jury would, 
it is said, with cogency, make world-wide merriment. It may, 
however, be that, if Congress refuses to tolerate in our new 
islands the things which the Constitution declares shall not 
anywhere be done, self-government there will not be a failure. 



Eepcblic or Empire? 41 

Many experts assume that free trade between Poi-to Kico, 
the Philippines and all our ports, levying the same rate of 
duties in those islands as at our home ports on foreign im- 
ports, is impracticable, and therefore it is suggested (in order 
to avoid the danger, that if Congress shall execute the last 
clause of the ninth article of the treaty, or shall in any man- 
ner legislate for Porto Rico and the Philippines, the restraints 
of the Constitution will attach themselves and the Supreme 
Court will acquire jurisdiction) that Congress abstain from 
any action, and thus the Constitution be circumvented by 
permitting the present military power of the President to 
continue indefinitely. That device comes from those who 
fear the Constitution will expand over the new islands, and 
restrain Congress, whenever it shall legislate for the islands 
and shall determine the status of the natives. It does 
not come from those who contend, as so many do with 
great subtlety, that with the single exception of pro- 
hibiting slavery, the Constitution was made only for the 
States in the Union, and does not expand over territories, or 
colonies, or dependencies, and that Congress is as free to do 
what it pleases in the Philippines as the British Parliament 
is to do as it pleases in India or any crown colony. 

As an indication of tendency of opinion regarding the 
scope of the President's war powers and their continued dura- 
tion, the following publication a few days ago is significant : 
" Attorney-General Griggs, after a careful consideration, has 
decided that the President, as Commander-in-Chief of the 
Army and not as President, could make appointments of 
Civil Governors without legislation by Congress. He thus 
holds that the President exercises absolute control over terri- 
tory held through military occupation, and that none of his 
acts regarding such territory cau be called in question so long 
as they are not made in his purely civil capacity as 
President." 

The vast powers of the President in a foreign country, 
as Commander of the Army and Navy, after Congress has de- 
clared war, or war exists, are not adequately realized by all 
of us. He is, in theory, under the restraint of the Constitu- 



42 Eepublic OB Empire? 

tiou and Congress, ^ but yet liis power is in practice uncon- 
trolled. We have seen that in Cuba, Porto Kico and the 
Philippines. The Constitution adopts the law of nations 
which prescribes the ixsages of war, which usages impart to 
the President that tremendous power so unlike that which he 
possesses in time of peace. When peace came, that despotic 
power fell in our new islands, but the President claims it was 
revived by another war, imdeclared by Congress, and created 
by the conduct of the Filipino insurgents on the 4th of Feb- 
ruary last. On April 11, 1899, the Spanish political system 
disappeared from the Philippines and an American political 
system took its place, established by necessity and by its 
own force. What was that American system, thus applicable 
to the Philippines ? If the treaty defined it as to be the one 
to be prescribed by Congress the President did not con- 
vene Congress. What, then, was his power in the newly 
acquired islands after April 11, 1899 ? It was settled as to 
California a half century ago. It was debated in 
Congress and finally determined by the Supreme 
Court.* At that time there was in California a young 
lieutenant of Army Engineers who was Secretary to 
the Military Governor, and, subsequently, as General 
Halleck, produced out of that large practical experience a 
treatise on the American laws of conquest and cession, and on 
the President's power when Congress has not legislated, which 
treatise was referred to at Paris by both governments as an 

1 Imperialists talli and write as if the President's po-^ver, as a military com- 
mander in time of war, is heaven-descended like that which the Emperor of 
Germany describes to be his own, but it has ascended to the President from 
the people of the States through the Constitution, which declares that "he shall 
be commander-in-chief of the army and navy and of the militia of the States 
when called into active service." He is to subdue the enemy, but in subordi- 
nation to the laws of his country. He cannot make military laws, or appeal, or 
suspend, or alter them. His duty is to execute them. He cannot create an 
"article of war," or disobey one, any more than can a private soldier. The 
Supreme Court is over him to teach him many things, and among them the 
law of nations and what he can lawfully seize as prize of war on "territory of 
the enemy. His military power is chiefly over military people, and Congress 
Is, under the Constitution, supreme over citizens not in the army, as well as 
over the general features of a war. Congress could in the recent war have 
forbidden the President to attack Spain in the East. 

'A good but brief summary of the California affair is to be found in the 
Congressional Record for April 11, 1900, page 4334. It happens to be there in 
this way : On March 30, 1899, Mr. Magoon of Nebraska, the law officer of the 



Kepublic or Empire? 43 

authoritative text-book. If there be a difference between the 
President's power in California and in the Philippines after 
proclamation of the treaties of peace, it is to the diminution 
of McKinley's power in comparison with Polk's, because the 
recent Spanish treaty, unlike the Mexican treaty, distinctly 
excluded executive power by requiring Congress to prescribe 
a political and civil code. 

It is argued, with more or less plausibility, that Porto Eico 
and the Philippines have been since the middle of last April 
"a part" of the United States and under its sovereignty in 
foreign affairs and in an international sense, but not a part 
thereof, and under Constitutional jurisdiction, in domestic 
affairs and in a national sense. Constitutional and 
legal truth respecting our new acquisitions cannot 
be long obscured. A case presenting the problem 
may find its way to the Supreme Court. An importer com- 
pelled to pay duties on an import from one of those islands 
may do so under an adequate protest, presenting for interpre- 
tation the phrase, " throughout the United States," appeal 
from the Collector's decision to the Treasury and, if the 
Collector be sustained, begin a suit to recover back the money 
paid. 

Whatever may be the final outcome of argument and de- 
bate of those Constitutional questions, Congress cannot well 
evade, quite apart from obligations imposed by the treaty, 
the task of prosecuting an inquiry in order to ascertain what 
liave been, since May, 1898, the real relations of Aguinaldo 
to tlie President, as well as to the naval and military author- 
War Department, gave to the Department an elaborate opinion that Consrcss 
oould not legislate for Porto Kico iu violation of the Constitution. Early in 
the next December the President and the Secretary of War advised Congress 
in the same sense, and that " plain duty," as well as national honor, required 
free trade between that island and all United States ports. During the next 
month ilr. Payne, Chairman of the Waj's and Means Committee, reported to 
the House a bill to secure such free trade, but within a few days thereafter, 
on pressure by the trusts and by President McKinley, he reported a bill to tax 
the trade between the same ports. About that time, and while the President 
and the Republican leaders were executing a right-iibout-facc, an official 
opinion from the .same Mr. Magoon was published, declaring in effect that only 
Congress could extend the Constitution over Porto Rico. It bore date of 
February 12, 1900, and its publication brought to light the conflicting opinion 
of May 30, 1899. Both opinions were thereupon obtained and published by 
Congress, one condemning and the other commending "imperialism." 



44 Republic or Empire? 

ities. Such an impartial inquisition is needed in order to 
ascertain how peace in the Philippines can be most safely 
obtained and assured. 

Agiiinaldo may be in captivity or exile before this paper 
has been published, but the question, why so many natives of 
Luzon have so long followed his standard of revolt from the 
benevolent assimilation promised in the President's Decem- 
ber military order, will remain to be explained by Congress. 

It has been industriously put about that those who delayed 
ratification of the treaty from the fourth of January (as if 
that were an excessive period of time) till the sixth of Feb- 
ruary are responsible for insurgent conduct on the fourth of 
the last-named mouth, which created belligerence around 
Manila. The recent preliminary report by the Schurman 
Commission has put an end to that by showing tliat a falling 
out between the natives and our troops began on Merritt's 
arrival; that then the Filipino newspapers started anti- 
American feeling, and the "popular clubs " were organized to 
assail us within and without Manila; that "the relations 
between the two forces were strained from the beginning"; 
that after the landing of our troops Aguinaldo decided to 
start the insurrection. The Commission has said he did not 
openly declare that he intended to attack our troops, but he 
aroused and excited his followers, and especially the military 
element, by claiming independence. The Commission was 
not distinct and explicit regarding the relative responsibility 
of Aguinaldo and the co-operative natives, but the following 
sentence in the report, alluding to failure of negotiations by 
the Commission with Aguinaldo's representatives, inculpates 
the former as most to be blamed : " No better proof could be 
furnished that the primary object of his struggle is not, as is 
pretended, the liberty of the Filipino peoples, but the contin- 
uance of his own arbitrary and despotic power." 

It may be inferred that the negotiations referred to broke 
down because Aguinaldo asked for a " suspension of hostili- 
ties," which the Commission refused to discuss because "a 
military matter," and because the Commission, not represent- 
ing Congress, could not deal with the insurgents. It issued 



Kepdblic or Empire? 45 

a proclamation on the fourth of last March, declaring " the 
principles by which the United States would be guided in 
exercising the sovereignty which Spain had ceded to us over 
the Philippine islands, and assuring the people not only of 
their rights and privileges, but also of the largest participa- 
tion in government which might be found compatible with 
the general welfare and reconcilable with the sovereign rights 
and obligations of the United States," and verbally assured 
Aguinaldo's agents " of a liberal form of government when 
they laid down their arms," but all the Commission offered, 
or could offer, was necessarily vague and unsatisfying, because 
the Commission did not represent Congress. 

What Admiral Dewey, on arriving at New York, has been 
reported as saying to the Associated Press agent is more 
illuminating, in explanation of the failure of the President's 
Commission, than the official report he signed as Commis- 
sioner. This is it : 

" Aguinaldo was a junior clerk in the navy-yard. He is a 
pretty smart fellow. I know him pretty well. In fact, we 
were great friends, and are, for the matter of that, but he has 
not the brains. There are people behind him, some of them 
lawyers and able fellows, who make a tool of Aguinaldo. The 
fight in the Philippines should be easily ended. The people 
had been so badly treated for such a length of time by the 
Spaniards that they were distrustful. This is the great 
difficulty in dealing with them. Where we have met them 
and they have been in such contact with us so as to learn that 
we mean to treat them well ; where thej- have seen that we 
mean what we say, there is no trouble. They stand by us all 
the time." 

A Commission sent by Congress, instead of by the Presi- 
dent, might have met a better fate. 

When Congress seriously takes in hand the real relations at 
Manila since May, 1898, between the United States and the 
former rebels against Spain, it will naturally look to see what 
the President's plenipotentiaries said and did at Paris regard- 
ing Aguinaldo and the forces standing around him. The pre- 
cise nature of the " political pledges," expressed or implied, 



4G Republic or Empire? 

tlaat were given may uot be accurately known by the public 
in our day, if ever. Each reader of narrations of the events 
from April 15 to August 15, 1898, will, nevertheless, draw his 
own inferences. 

It is indisputable that the subjects of Spain, led by 
Aguinaldo, gave aid to Dewey and Merritt in accomplishing 
the capitulation of Manila. In the annex to the thirteenth 
protocol of the Paris treaty the American plenipotentiaries 
are recorded as saying : 

" The city was closely besieged on the land side by the 
insurgents. It was in extremities for provisions, and the 
insurgents controlled the water supply. The Spanish forces 
had been unable to raise the siege, and therefore could not 
escape from the city on the land side." 

Again, in the first protocol, it is set forth that the Spanish 
plenipotentiaries, having alluded to the Tagalo rebels as 
forming, during the campaign, " an auxiliary force to the reg- 
ular American troops," the American plenipotentiaries replied 
in the fifteenth protocol that alliance with the Filipinos " is 
not a relation which the Government of the United States 
intended to establish, but it must, at least, be admitted that 
the insurgent chiefs returned and resumed their activity with 
the consent of our military and naval commanders, who per- 
mitted them to arm with weapons which we had captured from 
the Spaniards, and assured them of fair treatment and justice." 

Those last seven words indicate that assurances of a 
definite nature were, by somebody, given to the insurgents, 
and yet President McKinley in his last annual message, 
describing to Congress the surrender of Manila, did not allude 
to them. It is open to him to argue that he never encouraged, 
authorized, or ratified the acts of our Consuls in bringing 
Admiral Dewey and Aguinaldo together, or sanctioned what 
Admiral Dewey did in placing Aguinaldo in a position to fight 
against Spain at the head of the insurgents. In August, 
1898, he instructed Adjutant-General Corbin to cable General 
Merritt that there must not, by Aguinaldo's insurgents, be 
joint occupation with us of Manila, and that they must obey 
the proclamation of a truce under the protocol. 



Kepublic or Empire? 47 

Our Consuls at Manila, Singapore and Hongkong wrote 
fully concerning Aguinaldo to the State Department, and on 
June 16, 1898, it replied by order of the President to Consul- 
General Pratt at Singapore, admonishing him to make no 
promises to Aguinaldo, or " any alliance with the Philippine 
insurgents," but " to obtain the unconditional personal assist- 
ance of General Aguinaldo in the expedition to Manila would 
be proper if, in so doing, he was not induced to form hopes 
which it might not be practicable to gratify."' 

Consul-General Pratt brought Admiral Dewey and Agui- 
naldo togetlier and, under the eye of Dewey, Aguinaldo, before 
Manila capitulated, conquered, and held by conquest, a great 
part of Luzon, as the Schurman Commission affirmed. Agui- 
naido's " personal assistance " had been obtained, and 
accepted. 

The Schurman Commission reported that he (Aguinaldo) 
arrived with thirteen of his staff on May 19 and immediately 
came on board the " Olympia," to call on the Commander- 
in-Chief, after which he was allowed to land at Cavite and 
organize an army ; that this was done with the purpose of 
strengthening the United States' forces and weakening 
those of the enemy ; that no alliance of any kind was 
entered into with Aguinaldo, nor was any promise 
of independence made to him, then or at any other time ; that 
shortly afterward the Filipinos began to attack the Spanish ; 
that their number was rapidly augmented by the militia, who 
had been given arms by Spain, all of whom revolted and 
joined the insurgents ; that great Filipino successes followed ; 
that many Spaniards were taken prisoners, and while the 
Spanish troops now remained quietly in Manila, the Filipino 
forces made iJiemselves masters of the entire island, except 
that city." Mention of the furnishing of arms to Aguinaldo 
by Dewey was omitted iu the report. 
General Merritt testified at Paris : 

"It was not the wish of the Government to make any prom- 
ises to the insurgents, or act in any way with them. I had tele- 
graphed to the "War Department of the possible trouble that 
might arise with the insurgents, and asked for instructions as 



48 Kepublic or Empire? 

to whether I should consider them as enemies, and treat them 
accordingly in such case. To that request I had no reply." 

The injunction of secrecy was by the Senate removed from 
that testimony of January 11, 1899, and its publication was or- 
dered. Anj-body's imagination is equal to fancying its effect on 
the Filipinos and Aguinaldo when read by them, as it should 
never have been. 

It may not be necessary that a Committee of Congress visit 
the archipelago. There are witnesses, documents, records, 
letters and cable messages in Washington. If the Executive 
will submit all of them to Congress, they may, when collected, 
be examined and analyzed, and a keen, free debate in both 
houses of Congress had thereover furnish all the light that is 
required in execution of the ninth article of the treaty. 

The members of the Schurmau Commission have been and 
are, collectively and individually, zealous in denial that hopes 
were officially held out to the insurgents between the middle 
of March and August, 1898, which the President has not 
fulfilled or recognized ; but it is plainly disclosed in Senate 
Document No. 62, pages 318 to 362, that Consuls Williams, 
Wildman and Pratt, and Admiral Dewey, had frequent con- 
versations with Aguinaldo before the capitulation of Manila. 
All those officers are now accessible, and cross-examinations 
by a Committee of Congress ought to uncover the truth. 

By the protocol signed at Washington on August 12, 1898, 
the United States were to hold the city, bay and harbor of 
Manila, and nothing else, " pending the conclusion of a treaty 
of peace," which treaty when signed stipulated that to be 
binding it must be ratified by our Senate and President, by 
the Queen of Spain, and the ratifications be exchanged at 
Washington within six months. Otherwise there was no 
treaty. The Philippine islands were not to be evacuated by 
Spain till after such exchange of ratifications, and meanwhile 
the protocol of August 12, 1898, was to remain in force. The 
treaty was not ratified by our Senate till February 6, 1899, 
nor by Spain till March 19, 1899, nor were ratifications ex- 
changed till April 11, 1899. Till the last-named date, the 
United States had therefore no title to or sovereignty over. 



Republic or Empire? 49 

the Philippines, and had not lawful power to hold and rule 
any part of the archipelago excepting the citj', bay and 
harbor of Manila. Outside of that limit Aguinaldo and his 
forces had, by public law, the right to rule wherever, and 
so far only, as their conquests and military occupation 
completely expelled Spanish power. Over that area, the 
people, styling themselves the " Philippine Republic," 
or by any other name, had as good a right in law to rule 
as the United States had to rule over Santiago imme- 
diately after its conquest early in July. That was the 
situation on December 10, 1898, and up to April 11, 1899. 
The United States could not lawfully invade the area held by 
Aguinaldo till the treaty had been ratified because the 
protocol forbade. 

In that situation of the facts and applicable law, the Presi- 
dent, only eleven days after the signature of the treat}' of 
Paris, and before it had been ratified even by himself, 
ordered the Secretary of War to proceed to " the actual occu- 
pation and administration of the entire group of the Philip- 
pi ue islands," and to the extension, with all possible dispatch, 
of " the military government, heretofore maintained by the 
United States in the city, harbor and bay of Manila, * * * 
to the whole of the ceded territory." " Ceded " by what ? 
Not by ti-eaty, for it had not at that time been ratified by any 
body, and Congress had not even agreed to pay the twenty 
millions which was the condition precedent of cession. The 
two premises assigned by the President in the order as its 
icasou and justification were, fii st, that by Dewey's victoi-y and 
tlie capitulation of Manila, the " conquest " of the entire archi- 
pelago bad been efi'ected. The second premise was that, by the 
treaty of peace signed at Paris, " the future control, disposition 
and government of the Philippine islands are ceded to the 
Un'ted States," which was equivalent to saying that a treaty 
is binding only when signed by agents appointed by the 
President. 

The illegality of the order was bad enough, but its stupidity 
as diplomacy in pacifying and conciliating the Filipinos was 
-worse. It was a blow in the faces of those whom the United 



50 Kepublic ok EjMpiuk? 

States wishes to allure to consent to be led by Congress up- 
ward and onward in happiness and welfare. There was not 
in the order a persuading sentence! Each was alienating and 
repelling! With one hand the President offered the Filipinos 
siibmission to him and with the other he threatened war. 
The choice was offered to millions of people over whom the 
United States had not a scintilla of lawful authority and 
could get none under the protocol till the treaty had been 
ratified. A month later the President appointed the Schur- 
man Commission to facilitate "the effective extension of 
authority throughout these islands," and over a people at 
that time not under the sovereignty of the United States. 
The name of the official who wrote these two orders is as yet 
unknown by the public, but it ought to be, as an example and 
a warning, if the order sent toward the end of December ex- 
plains the tension of bitterness and emotion which brought 
on the existing belligerence between Otis and Aguinaldo. 

In one aspect, that December order is now immaterial 
excepting as an Executive act not to be commended by Con- 
gress as a precedent, but it is of paramount importance if it 
provoked the deplorable incident at Manila of the fourth of 
Februar}', and Congress should take cognizance of it as a 
piece of evidence tending to explain why the natives whom 
the United States rescued from Spain are now in arms 
against their deliverer and former ally. 

After the disastrous eft'ect of the December order had 
been felt iu "Washington, the need of more soldiers in Luzon 
had been seen and the"country was beginning to condemn the 
President because there was not in Manila an army large 
enough to enforce his December order; the President offered 
his defense at Pittsburg. It tore iu pieces his December 
order. It was this : 

"Until the treaty was ratified (April 11, 1899\ we had no 
authority beyond Manila city, bay and harbor." 

"We then had no other title to defend, no authority 
beyond that to maintain." 

" Spain was still in possession of the remainder of the 
archipelago." 



Eepublic oil Empire? 51 

The last seuteuce of the defense was iuaceurate, becauso 
the insurgents were, as the Schurixiau CommissidU reported, 
iu possession of a hirge part of Luzon. On what pretext 
could the Pi-esideut have signed that December order ? It is 
the work of Congress to ascertain. 

It is plain now to see that the Philippines are not to ba 
surrendered, abandoned and left derelict. For good or ill, 
they are iu our Lauds. Armed rebellion will be suppressed, 
either by removal of misunderstandings, or, if that fails, then 
by the armed hand. If it shall be decided that the Constitu- 
tion has already expanded over the archipelago and is not to 
be circumvented ; that Congress is in its every act under the 
restraint of the Constitution, but that the Philippines cannot, 
under the Constitution, be reduced to order and elevated iu 
civilization, then the Constitution will be an impediment in 
the '' vast mission for the advancement of mankind," alluded 
to by Lord Salisbury, iu association with the United States, 
and to which, perhaps, our country has been committed, so 
far as the Executive can bind it. Then our country has really 
come ti9 " the forking of the road." 

The United States -GovernnVent is not bound to "go into all 
the world " preaching any other political gospel than that of 
its written Constitution, under which every new acquisition 
has been treated as an inchoate State, to bg trained and fitted 
for immortality as a member of our glorious Union of States. 
Only of that Constitution, that Union, that expansion, that 
country, has our flag hitherto been an emblem wherever it 
has floated on land or Lea. 

A specific obligation confronts the next Congress, imposed 
b}' the last clause of the ninth article of the recent treaty, and 
accepted by its ratification. 

"The civil rights and political status of the native inhabit- 
ants of the territories thereby ceded," must be determined. 
Congress must in the determination decide first of all whether 
or not the treaty has removed, diminished or impaire<l anj' of 
the restraint which, before the war with Spain, was imposed 
by the Constitution ou Congress when legislating for the 
territory, or other property, of the United States. Next, 



52 Republic or Empire? 

wliether or not that restraint is so expressly declared and 
asserted in the Constitution that the Supreme Court must 
adjudge null and void any legislation disregarding and repu- 
diating that restraint. Finally, if the restraints upon Congress 
are not literal and explicit, in words to be applied to the 
Philippines, then, whether or not the principles of our con- 
stitutional liberties and of the fundamental limitations in 
favor of personal right and civil rights, formulated in the 
Constitution and its amendments, constrain Congress in exe- 
cuting the ninth article of the treaty. 

Perry Beljiont. 



riEPUBLic OR Empire? 



The Philippines and the Su= 
preme Court. 

[From the North American Review /o/- Mitirh, 1900.] 

The result of the exercise bj the President in the Philip- 
piues of what is kuowa as " the war power " (he has described 
it as "belligerent right ") is dailj becoming more evident. 
Heretofore " the United States '' has in area embraced all the 
States, the District of Columbia and the Territories. The 
words " throughout the United States," which are used iu 
the Constitution, have long been taken to mean " within the 
United States, or any place subject to their jurisdiction." 
That phrase is employed iu the Thirteenth Amendment, but 
there is now an effort to regard "the United States " as con- 
fined to our forty-five States. Although existing statutes have 
extended the Constitution over all our organized territories, 
there is a persistent attempt to place our newly acquired 
islands outside the United States. If we can make a safe in- 
ference from the writings of their leading professors, even our 
universities and colleges are taking sides in the controversy ; 
Harvard, Cornell and the University of Pennsylvania insist- 
ing that the Constitution protects only States, and that Con- 
gress is as supreme over our new islands as is the British 
Parliament over its colonies and dependencies, while Yale and 
Columbia take a different view. 

The United States had outlying possessions described 
as territories when the treaty of peace was concluded with 
England, and tlie Constitution provided for them. Later 
other outlying possessions came by cession from France, 
Spain, Mexico and Russia, and all were embraced 
by the words " United States." In 1853, the Supreme 
Court declared that " after the ratification of the Mex- 
ican treaty, California became a part of tlie United 



5i EEruBLic OR Empire? 

States." If the decision does not in principle cover 
our new islands, it must be because of the difference in 
the language of the two treaties of 1848 and 1898. The 
Mexican treaty declared : " The Mexicans, who in the ter- 
ritories aforesaid, shall not preserve the character of citizens 
of the Mexican Republic conformably with what is stipulated 
in the preceding article, shall be incorporated into the Union 
of the United States, and be admitted at the proper time (to 
be judged of by the Congress of the United States) to the 
enjoyment of all rights of citizens of the United States, 
according to the principles of the Constitution. " The recent 
Spanish treaty declared " the civil rights and political status 
of the native inhabitants of the territories hereby ceded to the 
United States shall be determined by the Congress." Has the 
recent treaty made the precedents set by the Supreme Court 
inapplicable to Puerto Eico and the Philippine Islands ? i 
The words " United States " have, as used in the Con- 
stitution, two meanings: one, the political corporation, the 
body politic, the Government now at Washington ; the other 
refers to the States, the District of Columbia and the Terri- 
tories. 

Since the inauguration of President McKiuley there has 
been an enormous extension of Executive )iower. What went 
on during a previous administration while President and 
Congress were contending over the question of recognizing 
the insurgent Cubans as belligerents, may have accustomed 
the country to look on the Executive as a chief source of 
power in the Spanish question. 

During all the annoyances of the last half-century endured 
by the United States from Spain in Cuba, England united 
with the concert of Europe to resist our intervention. She 
warned President Grant against doing exactly what President 
McKiuley did twenty-three years afterward. In 1898 Eng- 

' Senator Foraker and Kepublican lenders contend that tbe Philippines 
are unlike New Mexico, in the eyes of constitutional law, because the 
ninth article of the Spanish treaty is 'unlike the nintli article of the Mexi"an 
treaty and because Congress enacled the Constitution over New ile.xico and 
has not over the Philippines. That contention is in effect a contention that 
the Constitution is not the supreme law over a lenitory ceded to the Umled 
States, unless the treaty-makiag power or Congress shall so declare. 



RErrBLic OR Empike? 55 

Lmd cbauged her policy. Then armed hostility against 
Spain began, and the prerogative of our Executive known as 
the " war power " was brought into use which, as the Presi- 
dent said in his recent annual message, only Congress can 
end, even although paace has returned. These were his 
words : '■ Until Congress shall have made known the formal 
expression of its will, I shall use the a.uthority vested in me 
by the Constitution and the statutes to uphold the sovereignty 
of the United States in those distant islands, as in all other 
places where our flag rightfully floats." That adroit language 
has put on Congress the responsibility of continuing the 
supremacy of martial law. 

The President is always, in peace or in war, Commander- 
in-Chief of the Army and Navy, but when war exists there 
flows into his hands new powers and duties. Over what is 
embraced within a military occupation, or a conquest, the 
President is almost supreme. During tiie War of 1812 
serious questions of "w-ar power" on land did not arise, 
lint during the Mexican "War they did. Mr. Marcy, Secretary 
of War, ordered Colonel Kearny to occupy California and to 
organize a temporary military government. The treaty of 
piaee with Mexico was proclaimed in ISiS, but owing to 
dnlavs created by the slavery question, California was never 
organized as a Territory, and was finally admitted into the 
Union as a "State" in 1850. California was, during those 
two years, governed under the de facto government then 
existing, but Marcy, then Secretary of War, declared that the 
President will, "of course, exercise no powers inconsistent 
with the provisions of the Constitution of the United States, 
whic^ is the supreme law for all the States and Territories of 
(uir Union." The exercise of such po-\ver was then so novel 
tliat the Whig majority in the House bombarded the Execu- 
tive with resolutions inquiring wliere the President obtained 
constitutional authoritj- thus to govern California. 

Excepting by the declaration of war against Spain, the 
voting of liien and money therefor, the ratification of the 
treatv and appropriating twenty millions of dollars, Congress 
-has had nothing to do with initiating and executing the policy 



56 Eepcblic or Empire? 

which has resulted in the new problems referred to by th& 
President in his late annual message. The record of the 
written debates at Paris between the plenipotentiaries of the 
negotiating nations makes it indisputable that when the 
President authorized the August Protocol, his judgment was 
in suspense regarding the future of the Philippines. There 
was amjDle time to convene the Senate, but the final treaty 
was proposed by the President on his official responsibility, 
as was his i^rerogative right. He could not make a treaty 
binding on the United States till two-thirds of the Senators 
had consented to it, but it would not, under all the circum- 
stances, have been easy for the Senate to reject the treaty 
with Spain which had been already signed, and when it 
had been ratified, the House was morally bound to 
vote an appropriation of the needed twenty millions. 
By sending to Paris as his plenipotentiaries three ex- 
perienced, able and trusted Senators, the President took the 
Senate into the negotiation, although his plenipotentiaries 
must obey him, even when they are Senators, and in voting as 
Senators on ratification, it is improbable that they would 
repudiate their work as negotiators. 

Those who now examine the official papers emanating 
from the President, to which publicity has been given, and 
Avhich assign reasons for the Protocol of August, 189S, and 
for the treaty itself, must be impressed by the sterility of 
information therein contained. The constitution has not been 
violated, but how omnipotent has been the Executive during 
nearly two years ! 

II. 

The natives of the ceded islands were transferred to the 
United States without their consent, and a phrase in the 
Declaration of Independence is used as a ground for criticism 
of the treaty. Some modern treaties have contained stipula- 
tions for obtaining such consent, but, in general, the engage- 
ments in treaties of transfer have only gone so far as to 
give tiie inhabitants time and right to decide to remain 
in the ceded country, or to depart therefrom. Such en- 



FiErLBLic or. E.Mriii!c? 57 

gagements esiste.l iu the cessions to the UuiteJ States by 
FraQCd, Spaia aa.l Mexico. Tlie free white inhabitants 
remaining wore to be citizens of the United States, and the 
territories ceded were in the discretion of Congress to be iu 
due time admitted into the Union as States, according to tbo 
principles of the Constitution. Tliat was deemed a compli- 
ance with the requirement regarding "consent of the gov- 
erned." The recent treaty with Spain was negotiated on a 
different basis, compelled probably by the conditions existing 
in the Philippine Archipelago. The Spanish plenipotentiaries 
insisted on a stipulation that the natives should, like those 
born in Sixain, have a right to choose their nationality. In 
the Twenty -first Protocol they appear as saying : 

" Tlie American Commission refuses to acknowledge tlie 
right of the inhabitants of the countries ceded or relinquished 
by Spain to choose the citizenship with which, up to the 
present, they have been clothed, and nevertheless this right of 
choosing, which is one of the most sacred rights of human 
beings, has been constantly respected since the day on which 
man was first emancipated from serfdom. This sacred right 
has been respected in treaties of territorial cession concluded 
in modern times." 

To that the American plenipotentiaries replied : 
"An analysis of this article will show that Spanisli sub- 
jects, natives of Spain, are allowed a year's time iu which, by 
the simple process of stating in a court of record their inten- 
tion so to do, they may preserve tlieir allegiance to Spain. 
Such persons have the fullest right to dispose of their prop- 
erty or remove from the territory, or, remaining, to continue 
to be Spanish subjects, or elect the nationality of the new 
territory. As to natives, tlieir status and civil rights are left 
to Congres.s, which will enact laws to govern the ceded terri- 
tory. Tliis is no more th.an the assertion of the right of the 
governing power to control these important relations under 
the new government. The Congress of a country which 
never has enacted laws to oppress or abridge the rights of 
residents within its domain, aild whose laws permit the 
largest liberty consistent witii the preservation of order and 



58 Eepublic or Empiue? 

the protection of property, may safely he inistcd )iot io 
deimrt from its iceU-settled 2^>''^^cllce in dealing luith the 
inhabitants of these islands. It is true that the Spanish 
Commissioners propose an article on the subject of nationality 
supplementing the one offered by them as to nationality of 
Spanish subjects, wliich provides that all inhabitants of the 
ceded territory other than Spanish subjects shall have the 
right to choose the Spanish nationality within one year after 
the exchange of ratification of the treaty. This would permit 
all the uncivilized tribes which have not come under the 
jurisdiction of Spain, as well as foreign residents of the 
islands, to elect to create for themselves a nationality other 
than the one in control of territory, while enjoying the 
benefits and protection of the laws of the local sovereignty. 
This would create an anomalous condition of affairs loading 
to complications and discord important to avoid."' 

Congress should execute the treaty in a way to give the 
natives the rights of "life, liberty and the pursuit of happi- 
ness," because the treaty definitely excludes the exercise of 
the President's " war powers " in the determination of those 
rights. Halleck, in the chapter of his International Law on 
" The Eights of Complete Conquest," say* that the rule of 
public hiw with respect to the allegiance of the inhabitants of 
a conquered territory is no longer to be interpreted as 
absolutely unconditional, as acquired by conquest or transfer, 
and handed over by treaty, like a thing assignable by contract 
and without the consent of the subject. lie adds that if the 
inhabitants of the ceded territory choose to leave it on its 
transfer, they have, in general, the right to do so. He then 
quotes from a decision of Chief Justice Marshall : 

" On the transfer of territory the relations of its inhabi- 
tants and the former sovereign are dissolved. The same act 
which transfers their country transfers the allegiance of those 
wlio remain in it." 

"This rule," Halleck 'says, "is the most just, 
reasonable and convenient which could be adopted. It 
is reasonable on the part of the conqueror who is 
entitled to know who become his subjects and who 



. Republic on Empire? 09 

prefer to coutiuue aliens ; it is very convenient for those 
who wish to become the subjects of the new State ; and 
it is not unjust toward those who determine not to become its 
subjects. According to this rule, domicile, as understood and 
defined in iDublic law, determines the question of transfer of 
allegiance, or rather is the rule of evidence by which that 
question is to be decided." 



TJuder the Constitution, " no money shall be drawn from 
the Treasury, but in consequence of appropriations made by 
law, and a regular statement and account of the receipts and 
expenditures of all public money must be published fiom 
time to time." (') All money received by tax gatherers, or 
collectors of customs, must, in time of peace, be paid into the 
Treasury of the United States, and can only be expended by 
an appropriation by Congress, to be examined and certified 
by the proper accounting and auditing ofiScers of the Treasury. 
The power to modify tariff laws was committed to Congress. 

The danger of pressure by importers and taxpayers upon 
the Executive was deemed too great to permit any discretion 
to be lodged there. Since April 11, 1899, and for some time 
before that, the power to levy duties on merchandise 
imported into our new islands, and internal taxes therein, 
has been exercised by the War Department, and the rates of 
those import duties and taxes varied to suit the pleasure of 
the Executive. Executive orders under the " war power " to 
that effect have been made applicable in Cuba, in Puerto 
Piico and in the Philippine Islands. The following is a 
sample : 

( ) When tbat wad writlea, Ihe frauds in Cuba were unknown by the 
public. 



60 Eepublic on Empire ? 

" Wae DzrAiiTMEXT, Washington, ) 
"July 13, 1S98. 5 

" The following Order of the President is published for 
the iuformation and guidance of all concerned : 

"Executive Mansion, July 12, 1898. 

" By virtue of the authority vested in me as Commander- 
in-Chief of the Army and Kavy of the United States of 
America, I do hereby order and direct that upon the occupa- 
tion and possession of any ports and places in the Philippine 
Islands by the forces of the United States, the following 
tarifl' of duties and taxes to be levied and collected as a 
military contribution, and regulations for the administration 
thereof shall take effect and be in force in the ports and 
places so occupied. Questions arising under said tariff and 
regiilations shall be decided by the General in Command of 
the Uaited States forces in those islands. 

" Necessary and authorized expenses for the admiuistr-a- 
tion of said tariff and regulations shall be paid from the col- 
lections thereunder. Accurate accounts of collections and 
expenditures shall be kept and rendered to the Secretary of 
War. 

(Signed) ' ' William McKinley. 

"Upon the occupation of any ports, or places, in the 
Philippine Islands by the forces of the United States the 
foregoing order will be proclaimed and enforced. 

(Signed) "E. A. Alger, Secretary of War." 

What are the obligations imposed by the Constitution 
regarding duties to be levied in the ports of the United 
States on the American continent upon imports from our new 
islands? Those who negotiated and ratified the treaty with 
Spain should have considered that. There is a way by which 
those who dread the effect upon certain voters of conceding 
free trade between the before-mentioned jsorts can avoid the 
anticipated political consequences to themselves. They can 
promote a suit to carry the question to the Supreme Court 
for a prompt judgment. Unless tlie precedents in previous 



Eepoblic on E.mpike'.-' 61 

cases be set aside, the result must be that absolute free trade 
has existed since April 11, 1899, and that such free trade can- 
not be prevented by Congress unless our new islands shall 
again become foreign territory. 



IV. 

There have been suggested these three ways of Congres- 
sional dealing with Puerto Rico and the Philippines : 

First — A concession to the natives of powers of self- 
government and home rule, with independence more or less 
qualified under Congressional supervision. 

Second — Ruling the islands as colonies in the way Great 
Britain rules her dependency, India, and her crown colonies, 
on the theory of unlimited power in Congress to govern them 
under the recent treaty as a peculiar estate outside the Con- 
stitution and the Union. 

Third — Assimilation of the new islands to the conditions 
cf New Mexico, for example, and governing them as our 
territories are now governed. 

The first plan is sternly condemned by the President 
in his late annual message. He has not distinctly com- 
mended any other plan, but what be said jilainly indicated 
liis preference for a continuance of his " war power" — 
" belligerent right" — as he describes it. 

The second plan is the favorite of Republican leaders. 

While the President is reticent, his present Secretary of 
War, appointed on account of his learning and wisdom in 
matters of Constitutional law, has, in his recent annual 
report, spoken definitely, clearly and concisely. The follow- 
ing is what he said : 

" I assume, for I do not think that it can bo successfully 
disputed, that (1) all acquisition of territory under this treaty 
was the exercise of a power which belonged to tlie United 
States, because it was a nation, and for that reason was endowed 
with the powers essential to national life ; and (2) that the 
United States has all the powers in resf.ect of the territory 
•which it has thus acquired, and the inhabitants of that terri- 



62 Kepcblic on Empire? 

tory, which any nation in the worki has in respect of territory 
which it has acquired ; that (3) as between the people of the 
ceded islands aud the United States, the former are subject to 
the complete sovereignty of the hitter, controlled by no legal 
limitations except those which may be found in the treaty of 
cession ; that (4) the people of the islands have no right to 
have them treated as States, (5) or to have them treated as 
territories previously held by the United States have been 
treated, or (6) to assert a legal right under the provisions of 
the Constitution which was established for the people of the 
United States themselves, and to meet the conditions existing 
upon this continent, or to assert against the United States 
any legal right whatever not found in the treaty. 

"(7) The people of the ceded islands have acquired a 
moral right to be treated by the United States in accordance 
with the underlying principles of justice and freedom, which 
we have declared in our Constitution, aud which are the 
essential safeguards of every individual against the powers of 
government, not because those provisions were enacted for 
them, but because they are essential limitations inherent in 
the very existence of the American Government. To illus- 
trate : (8) The people of Puerto Eico have not the right to 
demand that duties should be uniform as between Puerto 
Kico aud the United States, because the provision of the 
Constitution prescribing uniformity of duties throughout the 
United States was not made for them, (9) but was a provision 
of expediency, solely adapted to the conditions existing in the 
United States upon the continent of North America ; (10) but 
the people of Puerto Kico are entitled to demand that they 
shall not be deprived of life, liberty or property without due 
process of law, that private property shall not be taken for 
public use without compensation, that no law shall be passed 
impairing the obligation of contracts, etc., because our nation 
has declared these to be rights belonging to all men. (11) 
Observance of them is a part of the nature of our government. 
(12) It is impossible that there should be any delegation of 
power by the people of the United States to any legislative, 
executive or judicial officer which should carry the right to 



Eeitblic ou Empike? G3 

Tiolate these rules toward any 0116 anywhere ; and there is an 
implied contract on the part of the people of the United 
States with every man who voluntarily submits himself or is 
submitted to our dominion that they shall be observed as 
between our Government and him, and that in the exercise of the 
power conferred by the Constitution upon Congress, 'to dis- 
pose of and make all needful rules and regulations respecting 
the territory or other property belonging to the United 
States,' Congress will hold itself bound by those limitations 
which arise from the law of its own existence." 

For convenience of comment the foregoing has been 
divided by numerals. 

In the debate over the purchase and government of Louisi- 
ana, every question of constitutional law was considered that 
has been presented by the acquisition of our new islands. 
Federalists endeavored to discriminate between the inherent 
powers of a " nation " of States united by the Constitution 
and the Government at Washington created by the Consti- 
tution. 

A quarter of a century after the chaos of opinions over 
such arguments, the Supreme Court, by the luminous pen of 
Marshall, brought order out of disorder. He said of the 
inhabitants of Florida : 

" They do not share in tlie government till Florida shall 
become a State. In the meantime, Florida continues to be a 
territory of the United States governed by virtue of that 
clause in the Constitution Avhich empowers Congress ' tomahe 
all needful rules and regulations respecting the territory or other 
property belonging to the United Stales.' Perhaps tiie powers 
governing a territory belonging to the United States which 
has not, by becoming a State, acquired the means 
of self-government, may result necessarily from the fact that 
it is not witiiiu the jurisdiction of any jJ^irticular State, and 
is within the power and jurisdiction of the United States. 
The right to govern may be the inevitable consequence of 
the right to actiuire territory. Whichever may be the source 
whence the power is derived the possession of it is untjues- 
tioned." 



6i. Kepdblic or Empire? 

As to Secretary Root's first proposition, it is not to be 
denied that our treaty-making power could and did acquire 
our new islands, but that treaty-making power had the needed 
authority therefor, not because the United States constitute 
a " nation," but because it was imparted by the second article 
of the Constitution. 

Of the second proposition, it is clear that the Government 
at Washington is sovereign and independent in its domestic 
as well as its foreign affairs, with absolute and exclusive 
authority within its own territory, which embraces the right 
to make such fundamental law and such statutes as it pleases, 
but the pending question is, whether or not our existing Con- 
stitution restrains Congress in the execution of the last clause 
of the uinth article of tlie Paris Treaty. 

The third proposition recognizes that question. As 
sovereignty is the power to govern, the people of the ceded 
islands are, by the treaty, under the sovereignty of the United 
States. Its ninth article stipulates that the civil rights and 
political status of the natives thereof shall be determined by 
Congress, but that stipulation has not ousted all control by 
the Constitution over Congress when making its determination. 

The fourth may be agreed to, and as to the fifth, the 
natives under the treaty have no right to demand anything 
except that Congress " determine " their civil rights and 
political status, but the voters of the United States may insist 
that the new islands shall be treated by Congress as other 
territories of the United States, including those ceded by 
France, Spain and Mexico, have been treated. 

As to the sixth, the preamble of the Constitution declares 
it to be established " for ourselves and our posterity." It 
makes no mention of conditions existing on this continent, 
excepting that it had been framed " for the United States of 
America." The last clause of the sixth proposition takes us 
around in a circle to the old question of the power of a treaty 
to modify the fundamental law of the existence of our Gov- 
ernment. 

Up to this point the Secretary of War has contended that 
our Constitution does not extend over the natives of the new 



Republic or Empire r 65 

islands, and they cannot appeal to it ; but in the seventh pre 
position he concedes they can appeal to it on the ground oi 
morals. How and why in regard to moral rights if not legal 
rights ? Could the Supreme Court pronounce unconstitutional 
a determination by Congress of the civil rights and political 
status of the natives which would violate their moral rights ? 

The eighth and ninth propositions affirm that the first 
clause of the eighth section of tlie First Article of the Consti- 
tution is only to be enforced "uj^on the Continent of North 
America," and therefore a higher or lower rate of duties on 
similar imports can be collected in the ports of Puerto Rico 
and the Philippines than in the port of New York, although 
the Constitution declares that " all duties, imposts and excises 
shall be uniform throughout the United States." 

The eighth and ninth propositions also raise the inquiry 
whether or not" the Constitution compels absolute free trade 
between our new islands and our ports on the North American 
Continent, and at its threshold stands the now well-known 
Supreme Court case of Loughborough vs. Blake, declaring 
that " our territories are a part of our society in a state of 
infancy, looking forward to a complete equality as soon as a 
state of manhood is obtained." The question involved in that 
case was the meaning of the phrase " throughout the United 
States," and these were Marshall's words : 

"The eighth section of the first article gives to Congress 
the ' power to lay and collect taxes, duties, imposts and ex- 
cises ' for the purposes thereinafter mentioned. This grant 
is general without limitation as to place. It consequently 
extends to all 'places over which the Government extends. If 
this could be doubted, the doulit is removed by the subse- 
quent words, which modify the grant. These words are : 
' But all duties, imposts and excises shall bo uniform through- 
out the United States.' It will not be contended that the 
modification of the power extends to places to which the power 
itself does not extend. Tlie power then to lay and collect 
duties, imposts aud excises may be exercised, and must be 
exercised, throughout the United States. Does this term 
designate the whole or any particular portion of the Ameri- 
s 



66 Repiblic or Empire? 

cau em23ire '? Certainly this question can admit of but one 
answer. It is the name given to our great Eepublic, which is 
composed of States and Territories. The District of Columbia 
or the territory west of the Missouri is not less within the 
United States than Maryland or Pennsylvania ; and it is not 
less necessary, on the principles of our Constitution, that 
uniformity in the imposition of imposts, duties and excises 
should be observed in the one than the other. Since, then, 
the power to lay and collect taxes, which include direct taxes, 
is obviously co-extensive with the power to lay and collect 
duties, imposts and excises, and, since the latter extends 
throughout the United States, it fallows that the power to 
impose direct taxes also extends throughout the United 
States." 

That is a c\Qa.r, judicial precedent, and later there was an 
executive precedent which should now appeal with great force 
to the War Department. The Whigs in Congress, during and 
after the Mexican War, annoyed the Polk Administration 
with numberless inquiries respecting its power to trix imports 
into California and to lay taxes in New Mexico after peace 
with Mexico had been proclaimed in July, 1848. Robert J. 
Walker was then at the head of the Treasury Department, 
jiud he informed the collectors of customs that, by the treaty 
of peace with Mexico " the Constitution of the United States 
i& extended over" California, and customs duties there applied 
according to the rates of the Tariff Law of 1846. 

At that time an illustrious New Yorker was at the head of 
the War Department, who was, like its present chief, 
an eminent lawyer, and there was also in military 
command over California General Persifer Smith, as 
wise a lawyer as he was efficient in the control of a 
military department. Marcy held that on the conclusion 
of the treaty of peace with Mexico the military govern- 
ment which had been established in California " under the 
laws of war, ceasecZ to derive its aufhoritij from tJtis source of 
power. The end of the war, he added, left a government de 
facto in full operation, " with the presumed consent of the 
people " until Congress should provide a government, and 



Eepublic or Empire '? 67 

that such de facto government as existed must obey the Fed- 
eral Constitution. No duties could be levied in California on 
articles imported from any State or Territory, nor could they 
be levied in any part of the country on the products of Cali- 
fornia. If Secretary Root shall argue that the ninth article 
of the Spanish treaty made those precedents inapplicable to 
Puerto Eico and the Philippines, he must contend with 
Marshall and Marcy. 

After the ninth and tenth, the propositions seem to con- 
flict -with the previous ones, and especially with the third, 
which had affirmed that Congress in governing the natives of 
the Philippines will be " controlled by no legal limitations 
except those which may be found in the treaty of cession." 
The tenth declares that the natives are entitled to insist on 
three of the enumerated guarantees contained in the Consti- 
tution, because the United States has declared those 
guarantees to belong to everybody, because observance 
of them is a part of the nature of our Government, and 
because there is an implied contract that Congress will observe 
the three guarantees. When and where have those three 
been made " a part of the nature of our Government " to the 
exclusion of others ? They are not specially referred to in the 
treaty. Why those, any more than guarantees against ex post 
facto laws, unwarranted trial and conviction for crime, jury- 
less civil trials, and even uniform taxes and customs duties? 

The Secretary of War seems confident that the recent 
treaty, and not the Conatitution, is the test of the authority of 
Congress over Puerto Eico and the Philippines. He has per- 
fect trust, no doubt, in the wisdom of the present Congress 
and of the President, but yet he manifests uneasiness over 
what a possible future Congress and President may do, if the 
islands be left exposed to legislation unrestrained by the Con- 
stitution. He prefers to rely on the spirit and nature of our 
fundamental law rather than on its letter, but that is perhaps 
immaterial provided the judicial power can, in a proper case, 
sit in judgment on whatever Congress may do. The essential 
thinij h Constitutional control. 



68 Eepublic ok Empike? 

During the second quarter of the century just ending the 
opinion of the Supreme Court regarding the power of Congress 
over national possessions outside of States, was affected by 
the slavery problem. In the Dred Scott case the " needful 
rules and regulations" clause of the Constitution was set 
aside as not applicable to possessions thereafter acquired by 
cession, and power to govern was, in that case, based on the 
power to acquire, but accompanied by a denial of unrestricted 
power to rule over them as colonies or dependent provinces. 
After the War of Secession the " needful rules and regula- 
tions " clause was revived and the power of Congress to 
govern Territories was vested therein by the Supreme Court,, 
but always subject to restrictions imposed hy the Gonstitution. 

Perry Belmont. 



Eepublic oi; Emfike? 



The Constitution and the Presi= 
dential Campaign. 

[Vondenjied from Tbt-i New York Times, April 8, 1000.] 

Democrats iu Congress are defending the Coustitutiou 
and the Supreme Court against "imperialism," and if upon 
that issue the approaching Democratic National Convention 
sliall nominate candidates iu whom the country cau have 
confidence, the present Administration will have little chance 
of another four years of power. 

The Republican contention that Congress, when legis- 
lating for any part of the possessions of the United States 
outside of the forty-five States, is at liberty to enact such 
laws as it deems best, and that by the recent treaty with 
Spain sovereignty over Puerto Eico aJnd the Philippines cau 
be exercised by Congress unrestrained by the Coustitutiou, 
is to be the issue. 

It will uot do to ridicule those who cling to the letter aud 
the spirit of our fundamental law and the judgments of the 
Supreme Court. When Tweed was at the summit of his 
eminence as an organizer for the plunder of the people by 
corrupt legislation aud venal executive administration, he 
said to an associate who suggested that a proposed law iu 
the interest of kuavery would violate the Coustitutiou of New 
York : " What is the Constitution among friends?" 

In these days of imperialism there is impatience with 
the restraints of our Federal Constitution aud its final intcr- 
pietatiou by the judicial power. 

Acquisition by the United States of the rights and duties 
of goveruiug the new possessions was not a spontaneous 
preference of the inhabitants of those islands, nor tiie desire 
of the majority of the people of our own couutry. It was a 
reckless " leap in the dark." The Administration at Washing- 



70 Kepublic or Empipe? 

ton liad not thought out the new problem. Speculators were 
willing to take the risk because they contemplated great 
Government expenditures of money. Admirers of England's 
new policy, whose imaginations had been inflamed by the 
Queen's Jubilee, welcomed the Philippines, but had little 
thought of military consequences, which compelled Mr. 
Balfour to protest in the House of Commons : " I myself am 
not one of those who watch imperial expansion wholly without 
misgiving or wholly without anxiety. I think it is necessary, 
but that it ought not to be undertaken with a light heart." In 
the stress and strain of the South African situation the British 
Prime Minister complained in the House of Lords that even the 
British Constitution (although its interpretation, unlike our 
own, is uncontrolled by judicial power, and the Queen and 
Parliament can any moment throw it into the Thames) is not 
an efficient fighting instrument, and that it hampers imperial- 
istic preparations for an adequate defeuse of that modern 
British Empire which Eepublican leaders at Washington 
would imitate in our America. 

Eepublican leaders are averse to coming into .close 
quarters with the new situation. Their attitude toward the 
twenty million purchase would be laughable were it not so 
humiliating. They deny that the purchase is now a part of 
the United States, or is independent, or is a part of any 
foreign country. They fear to legislate, be it ever so little, 
lest the Constitution or the Supreme Court be thereby 
extended over the new islands. Even the more conservative 
leaders of the McKinley party do not, in the presence of the 
new fad of "imperialism," fight manfully for the Constitution 
and the recorded judgments of the Supreme Court, but whisper 
amendments to the Constitution if the Supreme Court will 
not, iu the interest of imperial powers for Congress and the 
President, overthrow its former decisions. 

One Eepublican Senator (Mr. Beveridge) put the Eepub- 
lican contention in the form of a resolution "to establish and 
maintain such governmental control as the situation may de- 
mand." Had he said " Constitution " instead of " situation," 
it would have been well. 



EEruBLic on Empire? 71 

In the President's messages to Congress the use of the 
■word "Constitution" is avoided as if it were a pestilent 
microbe. What is the reason ? Our fundamental law blocks 
the way of the schemes of " imperialism." To-day it is the 
Constitiitioo, next year it may be Congress, that stops the 
way. 

Tlie impulse of patriotism and the wish to save our public 
officials from foreign criticism, dictates a resistance to the 
suspicion that, after it was decided at Paris to demand from 
Spain a cession of the Philippines, the President and the 
Piepublican hierarchy devised the stipulation in the last 
clause of the ninth article of the recent treaty in order to 
prepare the way for the threatening issue now pending. 
What is that issue? A Kepulilican Senator from Vermont 
(Mr. Koss) presented it in a Senate resolution, as follows: 
"That by the recent treaty the United States have taken 
sovereignty over our new islands to exercise it unrestrained 
by the provisions of the Constitution.'''' ' He endeavored to 
defend the resolution by a speech which followed the lines 
laid down, even before the treaty with Spain had been rati- 
fied, by two learned professors of law in Harvard University 
— Thayer and Langdell. Their exposition was, in effect, that 
the term "United States" as used in the Constitution means 
either the political corporation, the body politic created 
thereby, or the States united thereby, and does not embrace 
the District of Columbia or the territorial possessions or 
colonies belonging to the United States. The word, or de- 
scriptive name, that embraces all combined is not disclosed. 

The Senator affirmed that Congress, whenever it shall see 
fit to enter territories for the purpose of legislation under the 
sovereignty of the United States, can go there unaccompanied 
by that Constitution which created Congress, and by whicii it 
now exists and holds whatever powers it has. The speech for 
the resolution and the utterances of other leading Kepublicans 
made the broader claim that, unless controlled by a treaty or 
by a law hampering itself, the Constitution is not an impedi- 

' The Rcpublictm carapaigu textbook emphasizes the resolution and th(! 
speech, circulating it by giving both in full as containing sound Uepublican 
doctrine. 



72 Eepublic oe Empire? 

ment iu the way of Congress doing what it jDleases in any 
territory. 

It logically follows, if Congress has heretofore extended 
the Constitution over the territories, which was the condition 
of all before the treaty with Spain, that Congress can, by a 
repealing law, withdraw its protection and put New Mexico, 
Oklahoma, Alaska, the Philippines and Puerto Eico in the 
same category of absolute subjection to its will, without 
possible interference by the judicial power. Or else there 
are to be two classes of territories, one under the protection 
of the Constitution and the Supreme Court and the other 
bereft of both. Such a differentiation between territory 
acquired under the Northwest Ordinance, the treaties with 
France, Spain, Mexico and Bussia, on the one hand, and the 
recent treaty with Spain, on the other hand, Kepublican 
leaders are endeavoring to promote. They assert that the 
former treaties stipulated that the inhabitants have the 
rights, privileges and immunities of citizens of the United 
States, but the latter treaty did not, and therefore as to them 
Congress will be unrestrained. 

The before-mentioned Republican Senator from Vermont, 
Mr. Eoss, of excellent repute as a lawyer, put the following 
question of constitutional law : " Does the Constitution of the 
United States ex froprio vigore, unaided by the treaty or act 
of Congress, extend to and cover the inhabitants of territories 
acquired by the United States ? " The question recognized a 
restraint upon Congress inherent in the Constitution, but dor- 
mant and not to be reached by the Supreme Court until 
vivified by treaty stipulation with a foreign government or by 
act of Congress. The Senator who formulated the question 
answered it in the negative and repudiated the better view, 
which is, that the Constitution expresses positive and peremp- 
tory prohibitions against, the exercise of certain specified 
powers by tlie United States and by Congress, which prohibi- 
tions are universal in time and place and of sjjontaneous and 
original force. It is immaterial whether those prohibitions 
on the United States, on Congress and on the President are 
positive or negative. Sovereignty over Puerto Eico and the 



Kepublic or EirpinE? 73 

Philippines is the exercise of legislative power which, under 
our system, is limited. Congress having onlv such powers 
as have been granted by the Constitution. If the Constitu- 
tion has declared that an act sliall not be done, it cannot be 
<lone anywhere, and if the Constitution has said tliat it shall 
be done, it must be done everywhere, no matter what a treaty 
may stipulate. 

Because the Kepublican leaders give such efficacy to the 
treaty-making power in this relation, it is worth while to 
analyze their argument. During a large portion of the 
century now drawing to a close, the domain of the treaty- 
making power has been in debate. It had had one aspect for 
political and foreign questions and another for judicial 
and domestic questions. If one rate of duty on imports was 
prescribed by treaty and a different one by statute, the judi- 
cial power enforced the last in order of date, leaving the 
political branch to get out of the difficulty as best it could- 
Eather recently the Supreme Court has laid down the whole 
law of the matters as follows : " The treaty power, as ex- 
pressed in the Constitution, is in terms unlimited, except by 
those restraints found in that instrument against the action 
of the Government or of its departments, and those arising 
from the nature of the Government itself and that of the 
States. It would not be contended that it extends so far as 
to authorize what the Constitution forbids, or a change iu the 
character of the Government, or that of the States, or the ces- 
sion of any portion of the latter without its consent." There- 
fore the treatj'-making power, as well as Congress, must obey 
the Constitution. That decision by the Court is the law of 
the land until reversed by the Court, and the recent treaty 
with Spain must be conformed thereto, which stipulates 
"that the civil rights and political- status of the native 
inhalutants of the Philippines shall be determined by Con- 
gress." What would have happened if it had declared tliat 
they should be determined by the President or the Secretary 
of State, and, Avhich is a more practical inquiry, what would 
be the situation if, after disposing as it did of the inhabitants 
born iu Spain, it had been silent regarding the native inhab- 



74 Kepublic or Empire? 

itants? Would not the inherent power of the Constitution 
over Congress and over the United States, when legishxting 
for those native inhabitants, be precisely what it now is? 
When the recent treaty named " Congress " it, of course, 
meant the legislative branch of the United States, including 
the President and his veto power. It meant a statute lawfully 
enacted under the Constitution. 

That obvious fact leads up to an examination of the pre- 
vious treaties of cession, all substantially alike on the point 
under consideration. That with Kussia, however, has no 
clause regarding admission into the Union whenever Congress 
shall decide, such as was in the other three treaties. The 
stipulation ceding Louisiana is an example of the other two, 
one with Spain and the other with Mexico, and is as follows : 
" The inhabitants of. the ceded territory shall be incorporated 
in the Union of the United States, and admitted as soon as 
possible, according to the principles of the Federal Constitution, 
to the enjoyment of all i-ights, advantages and immunities of 
the citizens of the United States, and in the meantime they 
shall be maintained and protected in the free enjoyment of 
their liberty, property and the religion which they profess." 

The opinion that the treaty added nothing to the rights 
which the inhabitants would have had and did have under 
the Constitution is confirmed by the following sentence in the 
Supreme Court opinion in Canter's case : " The inhabitants 
of the territories which his Catholic Majesty cedes to the 
United States by this treaty shall be incorporated into the 
United States as soon as consistent with the Federal Consti- 
tution, and admitted to the enjoyment of the privileges, 
rights and immunities of citizens of the United States. It 
is unnecessary to inquire luhether this is not their condition in- 
dependent of stipidation. They do not, however, participate 
in political power ; they do not share in the government until 
Florida becomes a State." The Constitution, without any 
treaty stipulation, guaranteed, therefore, to any inhabitant of 
the new territories " free enjoyment of liberty, property and 
religion," and any official or other individual interfering 
would have felt the hand of judicial power in some form. 



Eepublic or Empiee? 75 

The Supreme Court bad declared that the " United States " 
included the District of Columbia and the territories, and 
that the phrase " throughout the United States" covered all 
possessions. 

The efforts of the Administration to evade the Constitution 
and the Supreme Court revives memories of the Missouri 
Compromise, of Calhoun's theory that the Constitution ex 
prop-io vigore enabled the Southern slaveholder to go with 
his slave property into the Territories, and there possess 
such property until the Territory became a State ; the Wilmot 
proviso ; the delay in organizing California as a Territorj- ; 
the compromise of 1850, the squatter sovereignty invented by 
Cass, the popular sovereignty invented by Douglas, the 
debate between him and Lincoln, and the Kansas-Nebraska 
episode. 1 Those now living who, on the side of freedom, par- 
ticipated in those events, naturally exclaim : " Do you expect 
me to uphold the theory of the Constitution invented by Cal- 
houn in order to enable slavery to invade the free territories 

' Imperialists endeavor in vain to extract comfort for themselves over the 
contentions of the republican party in regard to slavery in the territories 
between the date of the Dred Scott decision and the adoption ot the Thirteenth 
Amendment which emled the controversy by putting an end to slave labor. That 
controversy troubled Congress from the beginning of the government till the 
war of secession. The turning point of it was the Constitution and what 
it permitted Congress to do. Nobody denied that the Constitution controlled 
Congress in the matter. Up to the time of the Mexican War Congress pro- 
hibired or permitted slave labor in the territories, according to its appreciali<in 
of the existing situation. Before the acquisition of Louisiana Congress IcL'i^- 
lated four limes, under the Constitution, on slave labor in the territories. i\\ ii e 
against it and twice for it. From 1803 to 1820 it legislated twice, once for slavirv 
in the territories and once against it, and in the last-named year Coiigres.s 
inhibited slavery north of 36 degrees 30 minutes. Six times Congress organized 
territorial governments, recognizing and contirming slave labor. During the 
crisis o£ the war with Mexico, Mr. Wilmot, a Whig'^from Pennsylvania, intro- 
duced arcsolulion in Congress which pasised the House but was defeated in the 
Senate, the effect of which was tliat over any and all territory acquired from 
Mexico slave labor shall be excluded. The significance now of that episode 
is that it created a deadlock in Congress which, in the end, prevented legisla- 
tion from giving a territorial government to California, and kept it for two 
years under a de facto military government. Finally eame the republican 
platform of 1860, on which Lincoln stood, and which in effect declared that as 
the Constitution forbade a man to be deprived of his liberty witliout due pro- 
cess of law, therefore neither Congress nor a territorial legislature, nor any- 
body, could give legal existence to slavery in a territory. Lincoln became 
President, the war of secession followed, and slave labor was extirpated from 
our country till .ArcKinley revived it by his treaty of August 20, 1899, with 
the Sultan of Sulu, by which he not only tolerated slavery, but even coven- 
anted, as President, that the United States will not alienate the Sulu group of 
islands unless the Suliaa shall consent. 



76 Republic or Empire? 

of the United States?" The answer is that the situation in 
Puerto Rico and the Philippines is, thanks to the Thirteenth 
Amendment, the reverse of what it was in Kansas and Ne- 
braska, because to-day the supremacy of the Constitution 
means the destruction of slavery in Sulu, and the prevalence 
of the freedom, liberty, equal justice and self-government for 
which Lincoln labored. 

In the case of McCulloch (4 Wheatou's Reports, page 316) 
Chief Justice Marshall, speaking for the whole bench, said : 

" The government of the Union is a government of the 
people ; it emanates from them ; its powers are granted by 
them, and are to be exercised ou them and for their benefit." 

That description was so accurate and felicitous of the 
government framed by the Constitution that Lincoln, slightly 
condensing its language, adopted and made it his own. How 
does such a government compare with one the Republican 
leaders would give to the millions of people coming to us 
from Spain ? 

Republicans in Congress repeat the party shibboleth that 
" the Constitution of the United States was made for the peo- 
ple, and not they for it." But the history of the American 
people under the Constitution warrants the belief that they 
■were really predestined for the Constitution, so exceptional 
has been their freedom, prosperity and happiness. It was 
ordained to secure the blessings of liberty and justice, but 
does the national conscience uphold the Republican conten- 
tion which deprives Puerto Ricans of that liberty and justice ? 

The President has never told the country when it was that 
he decided to demand the cession of the Philippines. Possibly 
the date was disclosed to the Senate Foreign Affairs Commit- 
tee by the official instructions from Washington laid by the 
President before them, but when the August protocol was 
signed the President had, as every one now knows, not de- 
cided to demand the cession, and Spain contended at Paris that 
she vinderstood the protocol only required the determination 
by a treaty of the terms on which Spain should retain the 
sovereignty of the archipelago. The President resisted that 
view and Spain iiusisted an arbitration of the question by a 



Eepublic ok Empire? 77 

neutral power. Then the President offered twenty millions 
for sovereignty over the Philippines, and no further allusioa 
to the August protocol. The offer was accepted by Spain, 
whose interest in the natives thereupon became languid, and 
the President dictated, as the published protocols show, the 
peculiar stipulatian concerning the natives at the end of the 
ninth article of the treaty, which is so unlike that of previous 
treaties. 

There has been much patriotic gush and sentiment in 
explanation of demandiug cession of the Philippines, but, 
excepting what naval officers have said of Subig Bay, little 
that is not superficial. Que partisan of the Administration 
tells the taxpayers that the large sum was paid for the right 
to elevate the natives in Christian civilization, another insists 
on the intrinsic merits of the archipelago, and another will 
have it that the price was paid to inaugurate with China a 
commercial war of exports and imports. President McKiuley 
ought to explain to his countrymen what may happen to 
them in the commercial strife he would promote with China, 
if she shall awake from her lethargy and use the exceptional 
power of her four hundred million people to pour the products 
of her cheap labor over the Pacific into our Western ports. 

Peeet Belmont. 



78 Republic or Empire? 



Senator Foraker's Imperialism. 

[FyoM Letter to the Cincisnati ENiiUiKEi! nf June 7, 1900.] 
To the Editor of the Enquirer : 

Before the noise and confusion, tlie brass bauds and torch- 
light processions of a Presidential campaign shall overwhehn ns 
it will be well to get a clear perception of the dogmas which the 
Eepublican leaders intend, if they can, to compel the voters to 
accept. 

Senator Foraker, who, by his position as Chairman of the 
Senate Committee, is the sponsor for the preposterous Porto Eico 
law, has by his Senate speeches and by a recent speech in Phila- 
delphia made clear what the McKinley Eepublicans are to con- 
tend for during the approaching campaign. 

Their first contention is to be that the islands ceded to the 
United States by Spain in full sovereignty, jurisdiction and 
possession are " not a part of the United States " even tliough 
they belong to the United States. So Senator Foraker declared 
recently in Philadelphia, and so he and his Republican associates 
balk and shy in fear of the inevitable consequences of the treaty 
which McKinley made, and which they ratified. 

The Senator says that the new islands are not a part of the 
United States. Why ? Because, in the first place, as he affirms : 
" We Eepublicans ivould not have voted to ratify the treaty had 
that, in our view, been its legal efed, and, in the next place, 
such was the legal effect of the previous treaties with France, 
Spain, Mexico and Eussia." 

What logic is there?* 

' The Supreme Court has decided that if a country be ceded to another by 
treaty the ceded territory becomes " a part " of the nation to which it has been 
ceded {16 Howard, 164, and other cases). The third article of the Spanish 
treaty declares that " Spain cedes to the United States the archipelago known 
" as the Philippine Islands." In regard to ihe Mexican treaty the Supreme 
Court declared in the before-mentioned case of Cross rs. Harrison : " By the 
" ratifications of the treaty California became a part of the United States. And 
" as there is nothing differently stipulated in the treaty with respect to com- 



PiEPOBLic OR Empire? 79 

But when did Senator Foraker discover that the treaty did not 
make Porto Kico " a part of the United States? " It must have 
been after lie reported the lirst Porto Rican bill to the Senate, for 
in that bill he recognized native Porto Ricans as citizens of the 
United States — a recognition he repudiated in Philadelphia. 

The inference is irresistible, from the attitude, of Senator 
Davis, of Minnesota, one of the negotiators of the recent treaty, 
toward the Porto Rican law, that he does not sympathize with 
the Foraker fads, one of which is that because the recent treaty 
has placed the determination of the civil rights and political 
status of the natives of Porto Rico in the hands of Congress, 
therefore Porto Rico is not " part of the United States." 

Where else than in Congress could the determination have 
been placed ? If in the hands of the President, what effect could 
that have had on the main question which is whether or not 
Porto Rico is " a part of the United States ? " 

The previous treaties with France, Spain and Mexico placed 
upon Congress the determination of the questions when the 
inhabitants should be incorporated into the Union. Senator 
Foraker carefully suppresses the evidence of that fact in 
those treaties and endeavors to make his listeners imd readers 
think that the old treaties with France, Spain and Mexico put the 
inhabitants of the ceded acquisitions into the United States 
iiumediately as states and citizens. He knows better! New 
Mexico is not yet a state, and may not be till after Porto Rico 
comes into the Union. Even assuming tliat each of those three 
treaties declared expressly that the new acquisitions should be, 
iiumediately, part of the United States, how could that warrant 
the inference that the Philippines and Porto Rico are not a part! 

A man of common sense would rather say that, if California 
became a part of the United States on ratification of the Mexica* 
treaty, as the Supreme Court declared, then that Porto Rico 
and the Philippines are presumably a part. If, on the contrary, 
the treaty intended that those islands should not be a part of the 

" merce, it becomes instantly bound and privileged by the laws which Con- 
" grass had passed to raise revenue from duties on imports and tonnage." 

Senator Forakers statement raises the inquiry whether the Prc.>iident 
and Republican leaders endeavored, by the treaty of Paris, to change, in the 
interest of "imperialism," our customary rule regarding treaties of cession. 



80 Eepublic or Empire? 

United States wbj did the President fail to make the treaty so 
declare ia so many words ? What has Senator Davis to say on 
that point ? 

Every otlier treaty has made its cessions of territory a part of 
the United States, and inferentially such was the intention of the 
McKinley treaty, inasmuch as it is silent on the critical point. 
The Foraker idea must have come to him after the McKinley 
"plain duty" advice to Congress last December. 

That the United States acquired by the treaty sovereignty 
and jurisdiction over the new islands such as it has over New 
JMexico Senator Foraker does not deny. No more can he deny 
that under the ninth article of the treaty the "nationality " of 
the new islands is ours, and that sovereignty, jurisdiction and 
nationality are inseparable. 

Another Foraker idea is that if the Philippines are " a part of 
the United States" then the United States cannot sell or alienate 
them. The Eepublicans contemplate alienation of the archi- 
pelago, do they, and repudiation of McKinley's declaration 
that where the flag has been raised there it must abide ? 

Another Foraker idea is that it won't do to say tliat Porto 
Rico is " a part " of us, because, if we do, and the President 
should anywhere plant our flag, the locality would become " a 
part of the United States," but the Senator is too good a lawyer 
not to have read Fleming vs. Page (P. Howard, 603) and not 
to know that the President, unaided by a law or a treaty, cannot 
enlarge the boundaries of the United States. 

Another 'Foraker fad is that if the Philippines are " a part of 
the United States," then, since Spain has, under the treaty, free 
access for her merchandise during ten years, and since there must 
be free trade under our Constitution between our mainland and 
the Philippines, therefore Spain and all other nations can by way 
of the Philippines enter at New York their merchandise duty 
free I Was ever such a non sequitur in logic I The Senator is 
quite wrong, but were he quite right he should have perceived 
the constitiitional situation before voting to ratify the McKinley 
treaty. A Democratic Congress will know how to dissipate that 
idea ! 



Republic or Empire? 81 

Another idea is that the '•'open door" for us in China impli'es free 
trade for all the world with our archipelago. W hat can he imagine 
, the " open door " for us in China means ? That our merchandise 
is to enter China duty free forever? Has the McKinley Adminis- 
tration secured that ? Every one knows it has not, but only has a 
promise that our trade treaties with China shall stand, and that 
we shall pay no more at Chinese ports on our own merchandise 
than is there exacted of other similar merchandise. Secretary 
Hay has not (has he?) stipulated that in consideration of an 
" open door " for us in China, under our Chinese treaties, there 
shall be free ports for foreigners in the Philippines, or anywhere 
else in the United States ? Can it be that the McKinley Admin- 
istration has put our country in such a situation tliat we must 
either abandon the Constitution or open all our ports free to all 
imports ? 

The unwillingness of Senator Foraker to treat our new islands 
as a part of the United States is born of a determination not to 
recognize the Constitution in legislating for them. 

But behind all this can be perceived the Republican belief 
and dread that all Customs duties levied under the recent Porto 
Rico law must be paid back to the importers by our Treasury, 
and the Supreme Court will overtlu'ow the Republican con- 
tentions. 

Pekky Delmont. 

Xew York, June, 1900. 



Eepublic oii EjiriRE? 



Bryan Preferable to McKinley. 

[An Intcrrieie Published in The Kew York Times on August 16, 1900.] 

Mr. Palmer and General Buckner have been reported as 
advising Democrats to vote for McKinley. Four years ago I did 
what I could for their candidacy at a time when federal finance, 
coinage and taxation constituted the supreme issue, but, since 
that, the McKinley Administration and the Eepublican leaders in 
the Senate have made a new and vital issue for 1900. That new 
issue is well enough described as "Imperialism." Everybody 
understands its meaning. Its essence is the claim that the 
President and Congress can govern, unrestrained "by the 
Constitution, all our territories which are not States. It 
demands for the President and Congress as much power 
over the Philippines and Porto Kico as Queen Victoria and 
Parliament have over India. It defies the restraints of 
our fundamental law and denies the control of the 
Supreme Court. Quite recently, in the case of The Paquette 
Habana, the McKinley Administration, through its Assistant 
Attorney General, contended that the Supreme Court could not 
restrain the war power of the President from ordering the 
capture of innocent fishing vessels in violation of the Law of 
Nations. That contention the Court summarily rejected. The 
President asks the voters not merely to condone but to justify 
his usui-pation of legislative and judicial powers in our new 
islands during the last two years. If he should be re-elected 
there will be an end of the great political experiment based upon 
the strict observance of our written Constitution. There will 
eventually disappear the political inducements which during the 
century have transferred some of the best blood of tlie old 
world into the veins of the new. I shall do all I can for the 
success of the Democratic ticket. 



PiEPUBLic OR Empire? 



The Supreme Issue Is Im= 
perialfsm. 

[From the X. Y. Tkibuse of Augtixt 21, 1900.] 
To the Editor of The Tribune : 

Sir — "Were our country and its political institutions the 
same as four years ago there would be force in your recent 
criticism of me, but they are not the same. President 
McKiuley and the last Congress have made a change for the 
worse, which may be permanent unless Mr. Bryan and a 
Democratic House shall be elected next November. 

The Chicago platform of 1896 was enlarged at Kansas 
City to meet that radical and startling change in our National 
affairs. Mr. Bryan has accepted that enlargement and prom- 
ised loyalty to it. Were the political situation the same as it 
was four years ago, and I could not foresee (as I could not 
then) the havoc which McKiuleyism would work in four 
years, I would now oppose the Chicago platform and Bryau 
as I did then. 

What is the supremo issue to-day ? 

It is not coinage, currency or the payment of the National 
debt. The Republican financial law enacted by the last Con- 
gress has removed, or modified, that issue. Like so much of 
the Republican currency legislation, it was a makeshift. 

Neither of the two great parties seems j'et ready to return 
in such matters to Democratic standards planted in the stat- 
ute-book before the war of secession, when there was no 
legal tender other than gold and silver dollars, and but little 
Government debt. The coinage and currency issues of 1896 
wei'e superseded by the now Republican financial law, by the 
Treaty of Paris, and by President McKinley's exercise iu the 
islands thereby ceded of what he has described as his " bel- 



84 Bepublic or Empire? 

ligerent right," even after peace with Spain had been pro- 
claimed in April, 1899. 

Nearly "forty years ago the Kepublicaus, against the votes 
of the united Democracy, first put on our statute-book the 
dishonest and unconstitutional law making greenbacks legal 
tender for all debts, whether incurred before or after the 
enactment ; but it may be supposed that in the following 
Presidential election of 1864 the issue raised by that legisla- 
tion was considered trivial in the face of an imperilled Con- 
stitution and of the war of secession. 

Not many years ago McKinley advocated and voted in the 
House for free silver coinage at 16 to 1, and for paying Gov- 
ernment bonds in silver dollars, but such greenbacks and 
silver dollars are not the issue now, whatever Mr. Bryan and 
Mr. McKinley may think of them to-day. 

What is, then, the supreme issue of 1900 ? 

It is the Treaty of Paris, its interpretation and legal effect, 
its relation and the relation of the islands it ceded to the 
Constitution, whether or not the United States can rule over 
those islands in disregard of the restraints the people have 
by their Constitution imposed on their National agents, 
wherever, on sea or land, in States or Territories, in Porto 
Rico, New Mexico, Alaska, the Philippines or in China, any 
of those agents, be it Pi-esident or Congress, may seek to 
exercise Government power. 

The results of the war and the problems arising in our 
new possessions must be solved under the Constitution. Out 
of our great national prosperity arises the necessity of new 
outlets for capital, but such capital and individual rights must 
have the safeguards of constitutional protection. There is no 
safety for liberty or property over which our Constitution 
does not extend. 

A part of the supreme issue of 1900 is also the rights and 
duties of the United States toward the other nations of the 
world, independent and sovereign, and toward all foreign 
peoples everywhere, in Asia, Africa or the islands of the sea. 

May I ask you to publish this reply to your criticism ? 

Perry Pf.imoxt. 



Republic ok Empire '; 



Voters will Reject Imperialism. 



Newport, E. I., September 5, 1900. 

Hon. John T. McGraw, 

National Committeeman for West Virginia, 

Grafton, West Virginia : 

My Dear Sir — I am very sorry I cannot at present go to 
Wheeling, as you ask me, and aid in the campaign against the 
re-election of President McKinley. Later on I may be able 
to do so. 

The Republican idea — the imperialistic idea — that all the 
millions of people in our territories and islands, a greater 
number than was our whole population seventy years ago, can, 
in time of peace, excepting those who are aliens and pro- 
tected by treaties, be governed by Congress according to its 
own fancy unrestrained by the Constitution and the judicial 
power, and if Congress shall not legislate, can by any Presi- 
dent, be he McKinley, or Bryan, or any one else, be ruled 
arbitrarily and regardless of any other restraint than the 
usages of war — will, I am confident, be rejected by the voters 
of West Virginia. 

Such " imperialism " was by the Kansas City Convention 
made the supreme issue, and voters are rajiidly coming to 
perceive that, in comparison with it, other pending political 
issues are trivial. 

The Republican leaders asked in their Philadelphia plat- 
form the re-election of President McKinley because he had 
obtained the treaty of Paris ; but now they condemn Mr. 
Bryan because he, as they say, achieved its ratification in the 
Senate. Mr. Denby has been for twelve years in the diplo- 
matic service of the United States, and recently employed by 
President McKinley in the Philippines. He has recently 



86 Republic or Empire? 

declared that Mr. Bryan accomplished the ratification so that 
he might thereby create, what Mr. Denby describes as " the 
bogey of imperialism," in order that he might fight and over- 
come the " monster." He imagines that the " imperialism " 
which Democrats denounce is altogether the treaty and is 
not the Republican desire and purpose to govern the ceded 
islands in disregard of the Constitution. 

The Republican National platform commended the recent 
Republican financial law as an enactment " by which the 
l^arity of all our money and the stability of our currency 
upon a gold basis has been secured." Mark the word, 
" secured." But now Secretary Gage and the Republican 
newspapers afiirm that Secretary Gage, or any Secretary of 
the Treasury, can, without rendering himself liable to im- 
peachment for violating the new law, easily put the country 
on a silver-dollar basis. 

After reading what Secretary Gage has recently said of the 
inefficiency of the last Republican financial law of March 4, 
1900, we may wonder whether or not there are in the Repub- 
lican party many voters who really wish for the United States 
an effective gold monometallic basis as in England, where 
silver coins are only a token currency and nothing is full 
legal tender excepting gold coins. Gold dollars the only 
standard dollars, but silver dollars at the same time so far a 
standard as to be full legal tender for all government and 
private debts, are on the face of it incompatible and incon- 
sistent. However that may be, the completest gold standard 
that human ingenuity can make would be poor compensation 
for the abandonment by the United States of their Constitu- 
tion as " imperialists " propose. 

Frantically endeavoring to evade and shirk the issue of 
"imperialism," the Republican leaders count up the number 
of vacancies soon to be on the Supreme Court bench and 
announce the names of those Mr. Bryan will propose to the 
Senate after March 4 to fill the vacancies. How infallible as 
mind-readers and foretellers of events in the future those 
"imperialists" must be if they are really sincere in what 
they say to their countrymen. 



Republic or Empire? 87 

Have you not been impressed by evidence of the aliena- 
tion of the Eepnblican party from the Constitution, disclosed 
by omission in the Philadelphia platform of any mention of 
the Constitution in connection with a plan to govern the new 
islands, and omission by the President, in his speech at Canton 
on the 12th of July last, to mention the Constitution in connec- 
tion with anything whatever? He proclaimed the baldest 
" imperialism " when he said to the Committee notifying him 
of his renomination, that Congress " has full legislative power 
over the territory belonging to the United States," and there- 
fore by inference can govern in disregard of the Constitution, 
which does not permit the exercise anywhere by any Federal 
agent of such arbitrary power. 

That Constitution is now as necessary in our new islands 
as in West Virginia, and it is difficult to understand how our 
banks, our trust companies, our insurance companies and 
individuals having loanable capital seeking investment in 
those islands can tolerate the " imperialism " which deprives 
that capital of the protection of the Constitution and the 
judicial power. " Imperialism " offers nothing in place of the 
Constitution but the arbitrary will of those ruling for the 
time at "Washington. 

Yours very truly. 

Perry Belmont. 



CONGRESS 




